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Shaik Jafarji Hiptullah Bhoy Gin And Press Factory, Amraoti v. Shaik Ismail .
Structured Summary of the Opinion — Appeal under the Workmen's Compensation Act
Factual and Procedural Background
This appeal arises under the Workmen's Compensation Act. The applicant was employed as an oilman in the ginning and pressing factory of the non‑applicant at a salary of Rs. 16 per mensem. On 15th March, while oiling a bevel‑wheel, his hand accidentally came into contact with the machinery and he suffered an injury resulting in the loss of his left thumb.
The Commissioner found that the applicant's hand came in contact with the machinery owing to careless handling of the oilcan. The employer appealed against the Commissioner's decision. The court considered statutory provisions, analogous English law and prior cases, factual testimony (including the applicant's pleadings and the evidence of the employer's engineer), and objections raised by the employer (including objections on scope of "workman", want of notice, extent of injury and an alleged Rs. 25 payment for the doctor). The appeal was ultimately dismissed under Order 41, Rule 11 of the Code of Civil Procedure.
Legal Issues Presented
- Whether the employer is liable under s.3 of the Workmen's Compensation Act where the employee was negligent or careless.
- Whether the accident "arose out of and in the course of" the applicant's employment (i.e., whether the act was an ordinary hazard of employment or an added peril outside the scope of employment).
- Whether the applicant qualifies as a "workman" under the Act — specifically whether ginning and pressing cotton is a "manufacturing process" within the meaning of the Factories Act (Cl. (4) of s.2).
- Whether want of notice to the employer barred the proceedings.
- Whether factual objections (extent of loss — one phalanx versus whole thumb; alleged Rs. 25 payment to the doctor) could be raised on appeal as questions of law.
Arguments of the Parties
Applicant's (Worker's) Position
- Pleaded that "My hand got caught in gearing while I was working in my employment." The applicant maintained he was performing his duty to oil the shaft and, while holding the can in his left hand and having to put his hand close to the bevel wheel to oil it, he accidentally touched the bevel‑wheel and sustained the injury.
Respondent's (Employer's / Non‑applicant's) Position
- Contended that the worker's duty was only to pour oil on the shaft, and that the applicant "allowed his thumb unnecessarily to come into contact with the bevel‑wheel" — alleging carelessness/negligence on the part of the employee.
- Offered evidence (via engineer B.S. Dixit) that the bevel‑wheel is lubricated with grease and "as a rule it is lubricated when it is not working, but it also can be oiled while running." The employer framed the accident as arising from the employee's carelessness rather than an ordinary incident of employment.
- Raised objections on procedural and factual grounds: whether ginning and pressing is a manufacturing process; want of notice; whether only one phalanx was lost (affecting quantum); and an asserted Rs. 25 payment for the attending doctor.
Table of Precedents Cited
| Precedent or Authority | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 20 Halsbury's Laws of England, p.177 (secondary authority) | States that a workman may be guilty of contributory negligence, even of serious character, and still recover under the Act if the negligence does not amount to serious and wilful misconduct. | The court quoted this passage to support the proposition that mere negligence or carelessness is not an excluded ground of liability under the statutory language; later noted that some concluding words of the passage may require modification in light of statutory provisos. |
| (1917) A.C. 352 (House of Lords) | Discussed the distinction between acts done in the course of employment (even if done improperly) and acts outside the course of employment; several Law Lords indicated negligence alone would not exempt the employer; Lord Sumner formulated the test whether it was part of the injured person's employment to hazard, suffer, or do that which caused the injury. | The court relied on the tests laid down by the Law Lords (Lord Finlay, Lord Dunedin, Lord Sumner) to determine whether the contested act fell within the sphere of employment or was an added peril. The court applied Lord Sumner's test directly to hold that the accident here arose out of and in the course of employment. |
| AIR 1933 Cal 513 | Example where a viceman put his hand inside moving gear to retrieve a screwdriver not intended to be touched while machinery was moving; court held the accident did not arise out of employment because the workman voluntarily undertook an additional risk he was not employed to face. | The court discussed this case as illustrating an added peril outside employment. It distinguished the present facts on the ground that in the present case the employee was doing exactly what he was engaged to do — oiling the bevel‑wheel — and therefore the accident was an ordinary hazard of the employment. |
| English Workmen's Compensation Act, 6 Edward VII, Ch. 58 (statute) | Statutory language similar to Indian s.3: employer liable if personal injury by accident arising out of and in the course of employment; provisos similar and do not exclude mere negligence. | Used to show that English statutory law similarly does not exempt employers for ordinary negligence and to support the conclusion that the Indian Act should be interpreted in the same manner on this point. |
Court's Reasoning and Analysis
The court's analysis proceeded in a series of logical steps, applying statutory text, analogous English authority and factual findings from the record:
- Statutory framework: Section 3 of the Workmen's Compensation Act creates a right to compensation where personal injury is caused "by accident arising out of and in the course of his employment." The Act contains provisos exempting the employer in certain scenarios (e.g., wilful disobedience, breach of safety rules, drunkenness or drugs) but contains no proviso excluding mere negligence or carelessness. Consequently, negligence alone does not automatically bar recovery; the critical consideration is whether the accident arose out of and in the course of employment.
- Comparative authority: The court observed that the English Act (6 Edward VII, Ch. 58) is almost identically worded on the relevant point and that English authorities (including Halsbury and the House of Lords decision reported at (1917) A.C. 352) indicate that negligence by itself does not exempt the employer from liability. The court adopted the same rule for India.
- Distinguishing added peril from ordinary hazard: The court recognized the central difficulty is determining whether the employee, by his carelessness, incurred an additional risk outside of what he was employed to face (an "added peril") or whether the accident was an ordinary hazard of the employment. The court discussed AIR 1933 Cal 513 as an example of added peril — there the viceman reached into moving machinery to retrieve a screwdriver and was doing something he was not employed to do.
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Factual application to the case: The pleadings and evidence showed two key points:
- The employer's case admitted the man's duty was to pour oil on the shaft; the employer's engineer testified that the bevel‑wheel is lubricated with grease usually when stationary, but "it also can be oiled while running." Thus the method of lubrication could be either greasing stationary or oiling while running.
- The applicant stated he was holding the oil can and had to put his hand close to the bevel wheel in order to oil the shaft and accidentally touched the bevel‑wheel — i.e., he was performing the act he was employed to do.
- Normative assessment of "ordinary hazards": The court reasoned that momentary lapses of attention, slips, fatigue or transient carelessness are ordinary human imperfections and constitute ordinary hazards of employment — precisely the kinds of occurrences that the Workmen's Compensation Act was designed to cover. The court accepted that exceptionally outrageous or wilful misconduct might be outside this protection, but the present case did not exhibit such conduct.
- Workman status and statutory definitions: The court considered Schedule 2 to the Workmen's Compensation Act and the definition in s.2(1)(n), and addressed the contention that ginning and pressing cotton might not be a manufacturing process under Cl. (4) of s.2 of the Factories Act, 1911. The court held that (a) Schedule 2 does not limit the scope of the definition in s.2(1)(n) and (b) ginning and pressing cotton fits within the Factories Act definition of a manufacturing process because it adapts cotton for use, transport or sale.
- Procedural objections and evidentiary points: As to want of notice, the court applied the proviso to Section 10(1) Cl. (b) that want of notice is not a bar where the employer had knowledge of the accident from another source at or about the time when it occurred. The facts showed the employer knew of the accident (the injured man was sent to hospital, the employer undertook responsibility for doctor's fees and paid sums while the man was in hospital), so want of notice was not a valid objection.
- Factual matters on appeal and limits of appellate review: The dispute about whether only one phalanx of the thumb was lost was treated as a question of fact; the pleadings and evidence supported the applicant's pleaded loss of his thumb and the employer's reply admitted the fact. The claim regarding an Rs. 25 payment to the doctor lacked evidence. The court noted the proviso to s.30 of the Act that no appeal lies "unless a substantial question of law is involved" and held that the Rs. 25 issue was not a question of law and thus could not be raised on appeal.
Holding and Implications
HOLDING: The appeal is DISMISSED. The court upheld the Commissioner's finding that the accident arose out of and in the course of the applicant's employment and that the employer was not exempted from liability by the employee's mere negligence.
Implications:
- Direct effect: The Commissioner's decision awarding compensation to the applicant (for the loss of his left thumb) stands; the employer's objections (including want of notice and the Rs. 25 doctor payment) did not defeat the award.
- Scope of law clarified in this opinion: The court reaffirmed that mere negligence or carelessness by an employee does not per se bar recovery under the Workmen's Compensation Act; the controlling test is whether the accident arose "out of and in the course of" the employment (i.e., whether the act was within the sphere of employment or an added peril outside it), applying the tests discussed in (1917) A.C. 352 and analogous authority.
- No new legal principle was announced as a bold precedent; the decision applies established tests and statutory interpretation to the facts and dismissed the appeal under Order 41, Rule 11 of the CPC because no substantial question of law arose for appellate determination on the contested factual issues.
End of summary. All content in this summary is drawn exclusively from the provided opinion and does not add or infer information beyond the text.
1. This is an appeal under the Workmen's Compensation Act. The facts are stated in the Commissioner's judgment as follows:
The applicant was employed as an oilman in the ginning and pressing factory of the non-applicant on a salary of Rs. 16 per mensem. While oiling a bevel-wheel on 15th March, his hand came accidentally in contact with the machinery with the result that he received an injury resulting in the loss of his left thumb.
2. The Commissioner also finds that:
It was owing to the careless handling of the oilcan that the hand of the applicant came in contact with the machinery.
3. The question at once arises whether the employer is liable even though the applicant was negligent. Section 3 of the Act gives a right to compensation whenever personal injury is caused “by accident arising out of and in the course of his employment”. There are Provisos which exempt the employer from liability in certain cases, as for instance wilful disobedience of an order expressly given, or of a rule expressly framed for the purpose of securing the safety of the workman, or when the workman is under the influence of drink or drugs. But no exemption is given for mere negligence or carelessness. It follows the liability exists in such cases, provided the accident arises “out of and in the course of the employment”.
4. The English law is the same:
A workman may be guilty of contributory negligence even of a serious character and yet may recover under the Act if the negligence does not amount to serious and wilful misconduct. (20 Halsbury's Laws of England, 177).
5. The English Act, 6 Edward VII, Ch. 58, is worded in language which is almost identical with ours, so far as this point is concerned. S. 1(1) reads:
If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation……
6. The Provisos are similar to the ones in the Indian Act and do not include carelessness, or negligence. Lords Finlay, Atkinson and Sumner all indicate in the course of their learned judgments in (1917) A.C 3521 that negligence in itself would not exempt the employer from liability. I have, therefore, no doubt that the same rule applies in India as well.
7. But the real difficulty does not lie there. It lies in determining whether the accident arose out of and in the course of the applicant's employment, or whether by his carelessness he has incurred an extra risk which he was not employed to facet. In AIR 1933 Cal 5132 a viceman had been employed to mend certain machinery when it went out of order. For this purpose he required a long screw-driver and not having one on hand, he put his hand inside a gear-box to get one which had been left there, apparently by accident, while the machine was still moving. He had not been employed to touch moving machinery, but only to repair machinery when it was out of order in a stationary condition. In the circumstances, although the accident may have arisen in the course of his employment, it certainly did not arise out of it. It is true it was part of his employment to pick up and use a long screw driver, but not to thrust his hand into a gear-box full of revolving wheels to get it. In doing that he voluntarily under took an additional risk which he had not been employed to face.
8. It is argued the same thing happened here that the applicant had been employed to pour oil on the shaft of the engine, but not to do it while the machinery was in motion. This is a question of fact which was not raised before the Commissioner. The pleading of the applicant was this: “My hand got caught in gearing while I was working in my employment. …. The reply was in these words:
His duty was only to pour oil on the shaft. He allowed his thumb unnecessarily to come into contact with the bevel-wheel and thereby received his injury. This was his carelessness.
9. On this, the applicant again stated his position:
My duty was to oil the shaft. I was holding the can in my left hand. I had to put my hand close to the bevel wheel in order to oil the Shaft and in so doing I accidentally touched the bevel-wheel and received the injury to my thumb.
10. To this there was no reply. The evidence of B.S Dixit, the employer's engineer, is to the following effect:
I know the bevel-wheel in the factory. It is lubricated with grease. As a rule it is lubricated when it is not working, but it also can be oiled while running.
11. This indicates that it was possible to lubricate the gear in question in one of two ways: either to grease it when stationary, or to oil it when running. The non-applicant states the man was employed to “pour oil on the shaft”. It is clear then that he chose the latter alternative and employed the applicant to lubricate the gear when it was in motion. In (1917) AC 352, where this question is elaborately considered, the Lord Chancellor, Lord Finlay, drew a distinction between an act done in the course of the employment, but in an improper way and one done outside the course of the employment altogether. Lord Dunedin's distinction was whether the man had added a peril to his employment to which the employer had given no sanction, with the result that the ensuing accident was not an accident arising out of his employment.
12. Lord Sumner laid down the test in these words:
Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To as if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
13. In the present case the employee was doing exactly what he had been engaged to do. He was pouring oil on the bevel wheel. An accident of this kind is an ordinary hazard of such an employment. A man may be pouring and his attention may wander for a moment, or a muscle may give momentarily through fatigue; his attention may be diverted; he may slip; or he may even be careless enough to attempt something else at the same time, such as hail a comrade, or throw an article across the room, or extract something from his pocket: an accident can occur in any one of these and many other ways. Of course in most cases it would be due to his own carelessness and negligence; of course he would not be entitle to recover at common law. But the whole purport of the Act is to alter that. It would be otiose otherwise. Men who are employed to work in factories and else where are human beings, not machines. They are subject to human imperfections. No man can be expected to work without, ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being, momentarily careless. Imperfections of this and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act.
14. I do not deny that a man may be so wilfully negligent or careless, run such outrageous and extraordinary risks, that it would be impossible to regard them as the ordinary hazards of his employment. In the House of Lords' case referred to above, the workman had ducked under the waggon of a train in order to take a short out across the rails. The waggon moved before, he emerged from the other side and he was killed. The noble Lords who decided the case all stressed the fact that the accident did not arise out of the employment and Lord Sumner added:
The present is a case of an accident arising not out of but outside of the employment, since at the time of his death the workman was in no sense, doing that which was part of or fell within his employment (whether he was or was not acting with care therein), but was for his own purpose, namely, the convenience of the moment, thoughtlessly pursuing a course which fell outside of his employment.
15. Lord Atkinson said:
It would not be a question of negligence or misconduct, or anything of the sort, but it would not be within the terms of his employment….
16. In view of that, the concluding words of the passage from Halsbury's Laws of England, which I have quoted above, will probably require modification. The Act makes no exception in favour of serious and wilful misconduct, except in the shape of drunkenness and the like which it specifically mentions in the Proviso to S. 3. Consequently the test must always be whether the accident arose “out of and in the course of the employment”, when the Provisos do not apply. In the present case I am clear it did.
17. Another objection has also to be considered. Sch. 2 to the Workmen's Compensation Act gives a list of persons who are workmen within the meaning of S. 2(1)(n). The only clause which can cover the applicant's case is the one dealing with persons who are employed in a manufacturing process as defined in Cl. (4) of Section 2 of the Factories Act, 1911. It is argued that ginning and pressing cotton is not a manufacturing process. The answer is twofold. Firstly, the schedule does not limit the scope of the definition given in S. 2(1)(n). It merely illustrates it and the applicant clearly comes within the scope of the definition itself. In the second place, I have no doubt that ginning and pressing cotton is a manufacturing process within the meaning of the Factories Act. S. 2(4) of that Act defines a manufacturing process as any process for or incidental to the making or otherwise adapting for use, transport or sale, any article, or part of an article.
18. When cotton is ginned, it is adapted for use in cotton mills. It is also adapted for sale as ginned cotton. When it is pressed into bales, it is adapted for transport and also for sale in the shape of cotton bales. The matter clearly falls within the scope of the definition.
19. With respect to the objection about want of notice, the further Proviso to Section 10(1) of the Workmen's Compensation Act, provides in Cl. (b) that want of notice shall not be a bar to the maintenance of proceedings, if the employer had knowledge of the accident from any other source at or about the time when it occurred. There can be no doubt about the employer's knowledge in this case, as the man was sent to hospital almost immediately and the employer states that he undertook responsibility for the doctor's fees and also that he paid the applicant certain sums of money while he was in hospital. There is consequently no force in that objection. Two more questions are raised. The first is that, only one phalanx of the thumb was lost and so compensation should not have been awarded for the whole thumb. This again is a question of fact. The applicant pleaded that he had lost his thumb. The employer replied “it is a fact that the applicant lost his thumb”. The evidence is to the same effect. That concludes the matter.
20. The other point refers to an item of Rs. 25 which the employer says he under, took to pay the doctor who attended the injured man. There is no evidence about this. The Proviso to S. 30 states that no appeal shall lie “unless a substantial question of law is involved in the appeal”. This is not a question of law and so cannot be raised here. The appeal is dismissed under O. 41, R. 11 of the CPC.
D.S/R.K
21. Appeal dismissed.
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