A. K. MUKHERJEA, J.

( 1 ) THERE is an appeal against the judgment and order dated 30th November, 1960 passed by the Commissioner for Workmen's Compensation.

( 2 ) THE facts of the case are as follows: The petitioner Kesto Routh was a workman employed by a contractor of the opposite party P. E. Davis and Company, a firm of stevedores who were registered under the Calcutta Dock Labour Board. I shall refer to the petitioner as Routh hereinafter. On the night of 30th April, 1959, Routh was working on board the vessel S. S. Fern Leaf which was berthed at the King George's Dock buoy. Routh was assaulted by the crews of the said vessel and received certain injuries in his neck, chest, head, eyes, ears, teeth and almost all over the face. At the time of this incident Routh was receiving a sum of Rs. 172. 50 P. as monthly wages. Routh claims compensation from the opposite party for the injuries which he had received at a time when he was in their employment.

( 3 ) THE opposite party in its written statement has resisted the claims of Routh mainly on the following grounds: (i) that the applicant did not receive the injuries out of and in the course of stevedoring work. (ii) that the average monthly wages of the applicant were not correctly stated in the claim petition. On these pleadings the learned Commissioner for Workmen's Compensation framed the following issues: (1) Was there any accident arising out of and in the course of the applicant's employment? (2) What is the rate of monthly wages of the appellant? (3) Has the applicant sustained any permanent partial disability? If so, to what extent?

( 4 ) APART from Routh who himself gave evidence, five other witnesses were examined by the applicant in support of his case. Routh stated the circumstances in which he had received the injuries. He says that he is an employee of the Dock Labour Board, his status being that of a "khamali". He was working in the second shift on the night of 30th April, 1959 on S. S. Fern Leaf. At about 2 or 2-30 A. M. he became thirsty and came to the dock for some drinking water. He asked the foreman who suggested that he should go and find out where water could be found. He found water in a room in the rear portion of the ship and drank it. While he was coming out of that room, two European "sahibs" fisted him. He fell down and apparently fainted and did not know what happened thereafter. He says that he had noticed the two "sahibs" in another room while he was entering the room where he found the drinking water. The "sahibs" did not object to his going into that room at that time. He also deposed that when a ship is in the mid-stream, as S. S. Fern Leaf was on that occasion, the workmen Ret their drinking water on board the vessel itself. He says that the stevedore did not make any arrangement for drinking water and there was no notice prohibiting the drinking of water on the vessel. Routh was incapacitated as a result of the assault for three months and seventeen days. He received Rs. 626. 75 np. as injury leave allowance. At the time of the incident his earning was between Rs. 100 to Rs. 200 per month. Routh says that he cannot see well or hear well even now and that he feels pain in several parts of his body In cross-examination he said that he was working in the hold of the ship and that there was nobody with him when he went to drink water. He cannot suggest any reason why he was beaten. A suggestion was made to him that he had gone to sleep in the cabin of a Sahib but he denies that. He also denies the suggestion that he had entered the cabin of a crew for committing theft. He says that he gets "a guaranteed wages of Rs. 134/8/-". He further admits that he is still doing the work of a khamali and is getting the same wages but, he complains, cannot work to the same extent any longer and other members of his gang have to work for him. (After discussing the evidence in Paras 5 to 10 the judgment proceeded ).

( 5 ) ON the first question as to whether

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