- (1.) THIS is an appeal against the order of the Workmen's Compensation Commissioner, Jodhpur, dated the 13th of February 1954.
(2.) THE facts giving rise to it are that the appellant Hukamchand is proprietor of Bhoot Oil Mills, Jodhpur. Respondent Mt. Hemi's son Mishrilal, who was about 16 or 17 years of age, was appellant's employee at the said mill. On the night between 7th and 8th of September 1953, Mishrilal was working within the premises of the Mills. On that night he had an accident with the main shaft and it resulted in his death. THE respondent who is mother of the deceased, presented an application on the 14th of September 1953 for compensation. THE Workmen's Compensation Commissioner thereupon served a notice on the appellant on the 17th of September 1953 and directed him to submit his statement in the prescribed form indicating whether or not he was liable to pay compensation on account of said accident. THE appellant submitted his statement on the 8th of December 1953. He contested his liability to pay compensation by saying that the main duty of the deceased was to clean the strainer of the expeller, but he left his job, and started making fun with the main shaft, without the knowledge of the person in charge by fixing a bag on the main shaft to work as a fan and so it resulted in accident. THE Workmen's Compensation Commissioner, who will be referred to as 'commissioner' hereafter for the sake of brevity, has found that "the fatal accident of Misria arose out of and in the course of his employment" and so he has awarded Rs. 100/- as compensation to the respondent. It is against this order that the present appeal has been filed. Learned counsel for the respondent had raised a preliminary objection that the appeal was incompetent because it was not accom-panied with a certificate by the Commissioner to the effect that the appellant had deposited the amount payable as required by third proviso of sec. ?0 of the Workmen's Compensation Act, 1923. The appellant's reply was that he had deposited the money in the office of the Commissioner on 9th of April 1954 and had obtained a receipt from his office. The Commissioner was not present in the office on that date and, therefore, the certificate could not be obtained. His services were latter on terminated and another Commissioner did not take the charge for a long time. Under the circumstances, the appellant treated the receipt of the clerk as a certificate and as the limitation for appeal was expiring, he filed the appeal along with that receipt. A certificate was later on issued by the Commissioner on 13th of July, 1954. The appellant therefore prayed that the delay in producing the certificate should be condoned and the appeal should be treated within limitation by giving him the benefit of sec. 5 of the Indian Limitation Act. The appellant has examined the clerk of the Commissioner's office, Shri M. B. Lakhawat. He has verified the fact that the Commissioner was not on duty on 9th of April, 1954 on which the money deposited and the receipt was obtained. It is said that the Commissioner attended the office on 5th of April and on the next date an order was received in the office terminating the services of the then Commissioner Shekharchand Jain and another Commissioner, who was appointed in his place, took charge of the office on 26th of May 1954. Learned counsel for the respondent has urged that the statement of this clerk should not be believed because he admits that there was an attendance register in the office and still he says that the officer's attendance was not entered therein. It is further urged that the appellant ought to have explained the delay of every day in obtaining the certificate and since he has not done so, the benefit of sec. 5 of the Indian Limitation Act should not be given to him In my opinion, there is no force in the argument raised by the respondent's learned counsel. The witness has stated that he was only cleark in the Commissioner's office and that he had signed the receipt because the Commissioner was not present on 9th of April 1954. I do not think that he has given a false statement. If the respondent's counsel wanted to contradict him with the attendance register of the office, he should have got it called and confronted the witness wish the same. It appears from the statement of this witness that from the 5th of April 1954 to 26th April 1954, the then Commissioner did not sign any paper in the office. It was only for one day i. e. 27th April 1954 that he came to the office and signed some papers and then again there was a gap and the officer returned on the 10th of May 1954. On 10th of May 1954. the Officer against proceeded on leave and then he returned on 26th of May to hand over the charge to the next Commissioner. It would be too much to expect of the appellant that he should have kept a close watch and appeared on 27th of April and 10th of May to obtain the certificate from the Commissioner. The appellant could not know that the Officer would attend the office on the said two dates when he was absent for a long time before and after those dates. Shri Lakhawat has produced an order of the Government of Rajasthan dated the 4th of June 1954 which shows that the previous Commissioner Shekharchand proceeded on casual leave on 10th of May He got it converted into privilege leave due to his illness and therefore, could not hand over the charge: Rajendrapal, the next Commissioner joined on the 26th of May 1954 Since the services of Shri Shekharchand Jain were terminated earlier, it was directed that a formal report of taking over charge from him on 10th May should be signed by the new Commissioner. It thus appears that there was some irregularity even in the charge on account of the illness of the former Commissioner. The appellant had obtained the receipt within the period of limitation and ordinarily, he should have been given the certificate from the Commissioner's office as soon as the money was deposited by him. The third proviso to sec. 30 of the Workmen's Compensation Act provides for a certificate by the Commissioner to the effect that the appellant has deposited the amount payable under the order appealed against. The main object of this certificate is to show to the appellate court that the money is deposited with the Commissioner The certificate is not a certificate of fitness to appeal. The grant of a certificate was therefore only a formal affair. The appellant had committed no mistake on his part because he deposited the money in time as required by law. It was not within his power to compel the Commissioner to attend the office and give him the required certificate. Under the circumstances, there are very good reasons for extending the period of limitation under sec 5 of the Indian Limitation Act. I, therefore, allow the appellant's application and the appeal is treated as having been filed within the period of limitation. Now, as regards the merits of the case, it is urged by the appellant's learned advocate that the finding of the learned Commissioner is bused on no evidence and therefore, it should be set aside. It is further urged that the death of Misrilal cannot be said to have arisen out of his employment because it was none of his duties to touch the shaft. He went out of his way to leave his job at the expeller and invited his death by trying to make a fun in fixing a bag on the main shaft. In support of his arguments, he has referred to Ali Mohamed Jumardikhan vs. Shanakar Tukaram Pote (l) in which it was held that - "the Court is not entitled to interfere with the finding of fact arrived at by the Commissioner for Workmen's Compensation except on a substantial question of law, and that would of course include a finding of fact which was not based upon evidence. " He has also referred to G. Powell and A Ghany Co. vs. Panchu Mokadam (2) in which it was observed that - "it by no means follows that, because a man injured during the time of his employment the accident arose out of or in the course of such employment. " I respectfully agree with these observations. It is quite true that if the Commissioner records a finding of fact without any evidenced would come within the purview of a substantial question of law on which alone appeal lies to this Court under sec 30 of the Workmen's Compensation Act. It is also true that the employer cannot be held responsible for compensation unless the accident causing the death of the employee arises out of and in the courses of such employment. But the question whether a particular accident arose out of and in the course of the employment of a particular workman would depend upto the facts and circumstances of each case and a general observation made in one case cannot be applied to another case unless the facts and circumstances of both of them are identical. In the present case, there is no dispute between the parties that the deceased was in the employ of the appellant. It is also an admitted fact that the deceased was on duty at the Mills on the night of occurrence. The appellant himself has admitted in the statement given by him that the place where the accident occurred was near the stairs crossing the main shaft. " There is therefore no doubt about the fact that the accident took place because the deceased came into contact with the main shaft. It is not seriously disputed even by the appellant's learned advocate that this accident took place in the course of the employment of the deceased He was working in the Mill on that night and the course of his employment had no broken till he met with this accident. The main contention of the appellant's learned advocate is that the accident did not arise out of the employment of the deceased. It is urged that the accident should arise both out of and in the course of employment and, therefore the presence of only one of the two circumstances is not enough. It is true that according to sec. 3 of the Workmen's Compensation Act the accident must arise both 'out of and in the course of the employment of the workman' and if both the conditions are not present, the case would not come within the ambit of this section. The main point for determination, therefore, is whether it may be said from the facts and circumstances of this case that accident had arisen out of Misrilal's employment. Learned counsel for the appellant has urged that the burden of proving this fact was on the respondent. It is true that ordinarily the burden of proving a fact is on the person who asserts it. But there may be cases in which direct evidence may not be available and the existence of a particular fact may only have to be inferred from the circumstances. From the respondent's side the case was that her son was in the employment of the appellant and the appellant was free to assign to him any work he liked. It is the appellant who taken the stand that the main duty of the deceased was to clean the strainer of the expellar and that he went out of his way to make a fun with the main shaft In the first place, the appellant has not stated that the deceased could possibly have no business to touch the main shaft. He has only stated that his main duty was to clean the strainer of the expeller. He has very conveniently avoided to say us to what were the other duties of the deceased besides his main duty. It was for him to prove that the deceased was trying to fix a bag on the main shaft to make is work as a fan just out of fun. The respondent could not possibly lead a negative evidence on this point. The Commissioner writes in his judgment that he had visited the actual spot of the accident on the 8th of September 1953 and at that time he found that the whole shaft was uncovered. He proceeds to say that - "the place where one stair of three steps has been built to cross over from one side to another was also left unfenced. Any person climbing this stair, case with slightest slip of his legs is likely to fall down over the main shaft which may lead to serious bodily injury. This said fatal accident actually took place at this spot because the shaft on both the sides of the stair case was uncovered and not securely fenced. " It is urged that the learned Commissioner should not have relied upon his own inspection and it cannot take the place of evidence It would have been certainly desirable if the learned Commissioner had either made a separate note of inspection and got it signed by the parties, or if he had recorded the evidence on this point. But even if the personal observation of the Commissioner be left out of account, the burden was still on the appellant to prove that the accident took place because Misrilal was simply taking a fun on the main shaft. It is urged that the appellant should have been given an opportunity to lead his evidence and that the case may now be remanded for this purpose. If the appellant had disclosed the evidence on this point at the earliest stage, this request could be taken into consideration. But it appears that even though such a serious accident had taken place, no report was made by the appellant on the night of occurrence or thereafter either with the Workmen's Compensation Commissioner or with police or with any other authority. The notice given by Workmen's Compensation Commissioner on 17th of September, 1953 shows that the appellant made no report to him and although he was asked to file his statement within 30 days of the service of notice, the statement was not filed within that period. It was on 3rd of December 1953 that the appellant made an application to the Commissioner saying that he was sorry he could not submit the statement as the specimen of the prescribed form was not available and that he wanted extension upto 9th of Dec, 1953. The report submitted by him later on the 8th of December, 1953, was on a typed form and if it could be available only five days after, it is difficult to believe why it could not be available 30 days from 17th of September, 1953, and even upto 3rd of December, 1953. It is significant that by the 3rd of December, 1953, the appellant did not mention anywhere that Misrilal had his accident with the shaft because he was just making a fun. Even in his report dated 8-12-1953 he did not disclose as to what was the source of his information that the deceased was making a fun with the shaft. The appellant's long silence to disclose the reasons of the accident shows that he had taken this plea simply to avoid his liability to pay compensation and even then he kept the source of his information up on his sleeves. Even in the memorandum filed by him in this Court, he has not disclosed the source of his information. It is admitted that the appellant himself was not at the site when the accident took place. To allow him, now to lead oral evidence would be tantamount to opening flood-gates for bringing in spurious evidence. No good result is likely to come out now by remanding the case. It may further be pointed out here that the order-sheet of the Commissioner's file shows that the case was fixed for hearing on 11th of December, 1953. On that date the appellant requested for adjournment which was given. He had opportunity to lead his evidence on 16th of December, 1953 which was the | next date, but he only chose to proceed with the arguments. Under the circumstances, I do not consider it either just or proper to remand the case for further evidence. In the absence of any positive evidence on the part of the appellant, the inference is irresistible that the story about fixing a bag on the shaft to make it work as fan is only imaginary and Misrilal had accident with the shaft because it was uncovered and unfenced and the deceased somehow came into contact with it while passing over the stairs. In the case of Hill vs. Butterley Co. Ltd. (3) a workman slipped on an icy slope and was injured while crossing her employers' premises on her way to the office before staining the work. There was no public right to way across the premises and no actual road, but a practice had sprung up during a limited number of years without objection by the employers by which inhabitants of the neighbouring village crossed the part of the premises where the accident occurred to reach an adjoining railway station. Under the circumstances, it was held that the accident arose out of and in the course of the workman's employment. The present case is much stronger because the deceased was working within the premises. According to the appellant himself, the accident occurred near the stairs crossing the main shaft and it has not been even alleged by the appellant that the workman was not required to use the stairs while going to or coming from the expeller where he was working. The appellant has certainly attacked the Commissioner's observation at the spot that the shaft was unfenced and uncovered, but he has not had the courage to say in his memorandum of appeal nor has he filed an affidavit to say that the shaft is so well covered that such an accident could not take place unless the man deliberately touched the shaft. In the case of Vishram Yesu Haldankar vs. Dadabhoy Hor-masji & Co. (4) the deceased workman was employed as a Khalasi on a barge which was tied up along side a steamer. He was seen going to bed at 9 p. m. in the night, but early next morning, he was found to be missing and two days after, his body was seen floating in the docks. It was held that the most natural inference to draw was that the accident occurred because for some reason or other in the middle of the night the workman fell of the barge either in his sleep or when half awake and it was further held that this accident arose out of the employment as well as in the course of the employment. The learned Judges in that case relied on the following observation of Lord Tomlin in Simpson vs. L. M. & S. Ry. Co. (5) - ". . . . . . . . . where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as in the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment. " These remarks very fittingly apply to the present case. Again, in the case of K. Ramabrahman vs. Traffic Manager, Viza-gapatam Port (6), two workmen after having worked for over five hours left the harbour premises in order to drink some coffee. Thereafter they returned to the harbour premises to resume their work While they were crossing the lines, a railway engine ran into them and both of them were killed. There was a notice prohibiting persons from crossing the railway lines, but it was usual for workmen to cross the linens in spite of the prohibition. It was held that the accident which befell the workmen arose "out of and in the course of their employment. " In the present case, the deceased was always open to the risk of meeting such an accident with the shaft while going to and returning from his duty. The accident therefore arose not only in the course of but also out of the employment of the deceased and compensation to the respondent. The appeal the Commissioner was not wrong in awarding is therefore dismissed. . ;