An accident arises out of and in the course of employment if it occurs while the workman is performing his duties and is not directly attributable to the workman's wilful disobedience of an order.

Ahmad, J.

1. This is an appeal under Sec.30, Workmens Compensation Act, 1923, by the employer Bhurangya Coal Company Limited against the order dated 27-8-1951 of Mr. R. S. Pandey, Commissioner for Workmens Compensation, Bihar, awarding a sum of Rs. 2,000.00 to the claimant Sahebjan Mian as a compensation for the fatal injury caused to his son Kasim Ali on 20-6-1949, while the deceased worker was working as a Munshi in the premises of the aforesaid Company (to be referred hereafter as Company).

2. There is no dispute on the point that on the date of the accident Kasim Ali was in the employment of Bhurangya Colliery as a Munshi on a salary of Rs. 65/- per month and that on 20-6-1949, he died as a result of an accident which occurred within the premises of the colliery on or near the haulage road between inclines 24 and 25 (as shown in the map Ex. 17(b) ) and further that the accident was due to a collision between the deceased and a rake of tubs while they were moving up on that haulage road.

3. The version of the occurrence as given by the claimant is that at about that time Kasim Ali having taken attendance of coal-cutters was busy with the distribution of empty wagons to them at incline 25 and in the course of that he went up to incline 24 to see if the wagons there had been loaded. On his way back from there, when he had covered about half the distance, he suddenly saw the rake of tubs moving up towards him on their way back from the side of incline 25.

Seeing the tubs heading towards him, Kasim Ali, it is said, immediately clung against the side of the haulage road, lest they might collide against his body, but as, ill-luck would have it, the space at that place was too narrow with the result that the wagons in spite of all care on his part did not leave him unhurt and that too so seriously that he died then & there. According to the claimant, the refuge hole between inclines 24 and 25 was from that place at a distance of 20 ft. and so it was not at all possible for Kasim Ali in. that short notice to travel down to it for his protection there.

Further, according to the claimant, there was no other passage excepting the haulage road for the workmen of the colliery to go up and down the colliery and that it was incorrect to say that the workers had been forbidden to go by that haulage road or that they used to receive any kind of warning as and when the wagons used to be in motion. The evidence of Laskar (P. W. 2) for the claimant suggests that most likely Kasim Ali on the day of accident was working in the night shift & that probably the time for, that shift was then about to close, but he being the Munshi could not leave the mines until the distribution of empty wagons to the coalcutters was completed.

The evidence of that witness also shows that in the colliery sometimes there used to be four shifts overlapping one another and that there was no such arrangement that the day shift workers should not enter the mines unless the night shift workera had made their exit from there. On these facts the claim made before the Claims Officer was that the death of the worker Kasim Ali was caused by an accident arising out of and in the course of his employment as contemplated by Sec.3(1), Workmens Compensation Act (hereafter to be referred to as the Act) and that the Company as an employer was liable for the compensation to the family of the deceased worker.

4. The employer Company in defence pleaded that Kasim Ali had absolutely no business on that day to travel by the haulage road and as a matter of fact that route was prohibited under the Mine Rules and Regulations and the workers had been expressly forbidden also to travel by it. Their positive case, as it appears from the evidence of N.B. Maccua (O.P. No. 1) examined for the Colliery, waa that there was an express notice to the effect that no workmen should travel by the haulage road when the rope was in motion and, further, the deceased Kasim Ali had on that day, as a ma