- (1.) THIS is an appeal by the Employees' state Insurance Corporation (hereinafter referred to as the corporation) against the decision of the learned Judge, employees' Insurance Court, Bombay, who dismissed an application made by the Corporation under S. 66 of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act), for reimbursement by the employer of a sum of Rs. 1,207.69 representing the total of the periodical payments made under the Act by the Corporation to one Mohamed Sayed (hereinafter referred to as the injured person), who was injured. On 2 December, 1960 Mohamed Sayed joined duty at 8 a.m. and was working on a power press. At about 10 -45 a.m. he was feeding sheets in the press for giving them the side shape of the kerosene tin. At that time the sheet got stuck up in the die and he was straightening out the sheet. He put his hand from the side through a gap of about 1 inch to manipulate the sheet and accidentally put his leg on the pedal of the press. As a result of this, the punch came down and fell on the right index finger of Mohammed Sayed and cut it. In respect of this disablement the Corporation had paid to the injured person the sum stated above. It was the case of the Corporation that the injury was caused in the course of employment and it was the result of the negligence of the respondent, inasmuch as at the material time the power press on which the injured person sustained the injury was not provided with the safeguards of substantial construction so as to prevent access of the worker's limbs to the dangerous part in between the die and the press from the sides of the machine. The Corporation contended that the failure to provide the guards was in contravention of the provisions of S. 21(1)(iv)(c) of the Factories Act, 1948, and the rules framed thereunder.
(2.) IN the written statement which was filed by the respondent company it was denied that the accident arose out of and in the course of the employment of the injured person and the reason given was that the injured person exposed himself to the peril which was on account of its own action unconnected with his employment. The company also denied that the injury was caused due to its negligence or that at the material time the power press was not provided with safety guards of substantial construction. In other words, the company denied that there was any contravention of S. 21(1)(iv)(c) of the Factories Act. The Corporation examined P. V. Desai, who was the Senior Inspector of Factories. Mohammed Sayed, the injured person, also gave evidence. On behalf of the company Jacob Fernandez, who was at the relevant time the foreman of the factory, gave evidence. The learned judge arrived at the following finding on this evidence : 'The injured person had put a sheet inside the machine; it got stuck up by some obstruction. To remove the obstruction he put his finger through the cavity on the side. He also pressed the pedal. Thereby the punch of the press came down and his finger was injured. I also believe that at the time of the accident there was no guard on the side of the machine and it was accessible from the side to the worker standing on the platform, which is not possible now. As it is rightly pointed out by Sri Vyavaharkar, if a worker wants to put his hand or finger inside by the side, he has to get down from the platform and go over to the side of the press and in that case his foot cannot touch the pedal and so there is no probability of an accident of a similar nature now.'
(3.) ON this finding the learned Judge proceeded to consider whether the risk of such an accident was foreseeable by the company at the time of the accident. He came to the conclusion that even though the obligation of the company to provide a safeguard of the machine was absolute, the danger of the accident was not foreseeable. He therefore dismissed the application of the Corporation and it is against this decision of the learned Judge that the present appeal is filed.;