An employer cannot escape liability under the Workmen's Compensation Act by interposing a contractor, and an accident that occurs while a workman is performing his duties in the manner directed by the employer is considered to arise out of and in the course of employment.

( 1 ) IN this appeal the same old questions, viz. , whether the appellant and the respondent satisfy the test of being the employer and the workman respectively, under the Workmen's Compensation Act (hereinafter called the Act); whether the employer is liable because of the introduction of a contractor in between the employer and the workman and whether the contractor is a necessary party in the proceeding; whether the type of the accident is such as is outside the scope of the Act, and lastly whether the accident 'arose out of and in course of the employment about which phrase Lord Wrenbury in the case of Armstrong Whitworth and Co. v. Redford, 1920 AC 757 (780) observed,"the decisions upon it are such as that I have long since abandoned the hope of deciding any case upon the words 'out of and in course of', upon grounds satisfactory to myself or convincing to others. "speaking for myself, I cannot abandon so early the hope of deciding a case, according to my knowledge and satisfaction, when the point is argued.

( 2 ) THE workman's case was simple. On May 27, 1958 at a time when an erection was being put up in the employer's premises and he was working as a fitter for the erection, he fell from a height of 40 feet while he was fitting the frame and received personal injuries due to the accident which arose out of and in course of his employment. He claimed a lump sum of Rs. 4,900/- on the basis of cent per cent disability.

( 3 ) OVER and above the argument of Mr. Mukherjee the learned Advocate appearing for the employer the appellant company, giving rise to the above question which I shall presently deal with he also argued that the accident did not happen within the premises of the appellant company but in the premises of another company, viz. , Sree Iron Foundry Works (P) Ltd. and that the appellant company was neither aware of nor had any knowledge of any such accident. At the outset I dispose of this argument by saying that these are pure questions of fact found against Mr. Mukherjee's client on evidence, by the learned Commissioner, which it would not be possible for us to upset in the appeal. Moreover, neither the theory of national extension of employer's premises controlling the general rule of commencement and place of employment as laid down in the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, AIR 1958 SC 881 is applicable to the facts of the present case nor the tests where the employment is for the purpose of the employer's trade or business', are necessary to be discussed here, as sought to be argued by Mr. Mukherjee, the facts being different.

( 4 ) ORAL evidence was adduced on behalf of both the parties and considering all the evidence the learned Commissioner accepted the case of the workman and awarded in his favour the sum of Rs. 3430/- on the basis that there is permanent partial disablement and the total loss of the earning capacity is 70%. Against the said order the present appeal has been preferred by the employer company.

( 5 ) MR. Mukherjee faintly suggested that the evidence is not sufficient to support the finding of the said loss of the earning capacity of 70%. In my view he is not correct. There is the evidence of the Doctor (P. W. 3) proving that the workman was totally incapacitated and he could not work. Over and above, the workman himself proved the same who was not cross-examined on this point. This workman lost his right hand, right leg and cannot be upset in the appeal.

( 6 ) ON the first question of law, as to the relationship of the employer and the workman it is argued that there is none as between a master and a servant.

( 7 ) THE definition of workman in our Act is exhaustive and the Act applies only to certain classes of workmen defined in Section 2 (n) and enumerated in schedule II thereof. It is unlike the English Act which applies to all workmen. Again in our Act the definition of 'employer' being an inclusive one is not exhaustive whereas in the