James, J - (1.)On 22 June, Akbar Mian working in a rice mill in Gaya fell into a pit which contained hot water with the result that he was severely scalded and died the next day. After the accident, the manager of the mill was prosecuted for having failed to fence the pit and he has been fined two hundred rupees for not observing Rule 72(1)(a) of the Rules under the Factories Act. Mr. Sarjoo Prasad on behalf of the manager argues that the pit should be regarded as having been securely fenced; and in the second place that it was not a pit which would be governed by the provisions of Rule 72(1) of the rules under the Act. The pit, which on the occasion of the fatal accident contained very hot water, ordinarily contained water which was warm but not very hot used for the purpose of silting wood which was used in the factory.
(2.)It was fenced on three sides, but the fourth side was left open for the purposes of approach; and I consider the argument of Mr. Sarjoo Prasad to be reasonable, that the rules do not require a place of this kind which is used for the purposes of the factory to be fenced in such a manner as to be completely unapproachable. It was fenced in such way that nobody would cross that way and fall into the pit by accident; and if the Chief Inspector of Factories considered that further fencing was required, he should have issued an order on the manager under Section 26, Factories Act. It further appears from the evidence of the Inspector himself contained in his report on the enquiry which followed the accident that the water in the pit is never very hot and though it might be something more than lukewarm it does not appear that this pit could be described as a pit ordinarily containing hot or injurious substances, so that it was not such a pit as was affected by the provisions of Rule 72.
(3.)It is pointed out that the plan which is on the record of the case indicates that Akbar Mian could not have fallen into this pit in the course of his homeward journey because it was fenced on three sides, so that it would be necessarily avoided by any ordinary passenger; and there appears to be no foundation for the opinion expressed by the Magistrate that it was lack of a fence which caused this loss of life. The map appears to indicate that Akbar Mian climbed over the fence in order to reach the pit which he could presumably have easily done, or that he went deliberately out of his way in order to approach it from the southern side where there is an opening.