(1.) This is an appeal from a decision of the Deputy Commissioner of Hazaribagh, who is also Commissioner under the Workmen's Compensation Act, sitting at Hazaribagh, in which he dealt with the claim of one Dhanpal Madrasi, a mistry engaged in Jarangdih colliery. This man claimed compensation on the ground of permanent partial disablement due to fracture of right tibia and fibula caused by the falling of roof. Negligence either on the part of the employer or the employed is not the criterion to be employed. The question is firstly, whether the workman at the time of the injury was working within the scope of his employment, and, secondly, if so, whether the employer has proved that he is exempted from paying compensation because of the provisos to Section 3.
(2.) The facts are as follows: The mistri was employed at the time in attending to the timbering of the roof. That involved the setting up of timber together with its appropriate capping for the purpose of resisting the pressure of the roof, and moreover involved the operation of removing such existing timber as is rendered unnecessary by the erection of the fresh timber. The claimant stated in his evidence that he had been directed to remove a certain piece of timber, which was supporting the roof, and he says he was told that it was in the way of some tram line. The evidence as to whether the timber in question was or was not in the way of the tram line appears to be doubtful.
(3.) There was an overseer named Ulfat Khan, who had 20 years experience in the colliery and whose duty was to supervise the operations that were going on in this gallery. This man states that there were temporary props in the gallery and that new timbering was being put in. The claimant had said that he had been instructed by this witness to remove the old timber; that he had protested because, as he said, the roof was in a dangerous condition; that he had been expressly ordered by the Sardar, Ulfat Khan, to remove the timber and was threatened if he refused with loss of employment. This order of threat Ulfat Khan denies. The finding of the Commissioner is that the story of the complainant, that he removed the piece of old timber at the express instruction of Ulfat Khan and in response to a threat by Ulfat Khan, that if he did not do so he might lose his employment, is not true. But the Commissioner does not find either that the applicant had received any order not to remove the timber, or that the applicant is not speaking the truth when he says that he had removed the timber at Ulfat Khan's direction. All that is found by the Commissioner is that the story of the threat, the story of the protest by the applicant and the story that the timber was removed as a consequence of that threat under that protest is not true. It is further to be noticed that the evidence shows that the colliery had got at a place some 400 feet away from the place where the accident happened, a set of chains for the purpose of removing dangerous timber, so that if on the removal of the timber the roof were to fall the workman would be at a distance from the place where the roof would fall. It is not shown however that such chains were known by the workmen to have been available in the sense that they were habitually used, nor is it shown that the chains had been in use on this day at any particular place. 5. It is true that Ulfat Khan did say that they were commonly used. But on cross-examination of the applicant no case was put to him of the practical use of those chains for removing the timber, nor was it known that the chains were in use on that particular occasion and that he had neglected the use of such chains in this particular case. The provisions of Section 3 are like those of the corresponding section of the English Act, and the law here is the same as it is in England. The employer will only escape liability if he can satisfy the provisos in Section 3, and the only provisos which it is said protect the employer in this case, are those contained in subparas, (ii) and (iii). It is said, secondly, that in this case there was wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purposeof securing the safety of workmen. 6. It cannot be pretended that in this case there was any wilful disobedience of the workman to any order expressly given. "An order expressly given" refers to the circumstances surrounding the particular occurrence. It is not pretended that any such order was given, for in this case it is admitted, first of all, by Ulfat Khan that he was not near the place at the time of the occurrence or for a considerable time beforehand, that he had left the place and did not superintend the operations at all. Further, although the company have said, and it is admitted by the applicant, that the general scheme of operation was under the control of a European overman, that overman was not called by the company. His evidence would have been of the utmost value, but he was not called by the company for the assistance of the Court. 7. It is said that there is a rule about the removal of timber by means of chains, but no such rule has been proved and from the fact that, notwithstanding the supervision of Ulfat Khan and the overman, the chains for the purpose of removal of these timbers were at a place 400 feet away, such a contention was impossible. It cannot be held that the workman working under general supervision in those circumstances had wilfully disregarded either an express order or rule or a safety device, which he knew to have been provided for the purpose of securing his safety in the course of a particular operation in which he was engaged. 8. It cannot be seriously argued in this case that the operation of removing these props in the circumstances was outside the scheme of the employee. Therefore, in my opinion, the view of the learned Commissioner is erroneous. A consistent course of cases in England, which govern the application of the law here in this matter, show that in order to enable the employer to escape liability he must quite definitely prove that the provisos to Section 3 do in fact apply to the circumstances of this case. From the findings of the Commissioner, in my opinion, the company has failed to discharge that onus, and the applicant is entitled to recover compensation. The facts of the injury are simple. The bones were fractured and have united. There has been an overlapping, as is not uncommon in such cases. The muscles are wasted. 9. The workman has become permanently lame. Although it is difficult to say at the present time to what precise extent his permanent disablement would extend, yet nevertheless the fact that he is permanently partially disabled was clearly established and the medical estimate of 20 per cent is, in my opinion, not unreasonable in the circumstances and I would apply that estimate. It is quite unnecessary, we having all the evidence before us, to send the case back to the Commissioner for the purpose of making the estimate. 10. That would only prolong the proceedings infinitely and put the parties to entirely unnecessary expense. It is agreed that on the basis of 20 per cent of his total earning capacity the amount payable to the claimant will be Rs. 252: From this sum, will have to be deducted the amount of Rs. 38, what is agreed has already been paid, on account, by the employer to the claimant. The appellant will get costs from the respondent on Rs. 200. Luby, J. 11. I agree.