An accident arises out of and in the course of employment if it is caused by a risk to which the employment in fact exposes the workman.

( 1 ) THIS is an appeal from an order of the learned Commissioner for Workmen's Compensation awarding the applicant respondent a sum of Rs. 1200/- as compensation together with certain costs.

( 2 ) THE applicant was the mother of a boy who, it is said, died as the result of an accident arising out of and in the course of his employment. The boy admittedly was employed by the appellants in a canteen or tea shop and it was part of his duty to take tea from the tea shop which was outside the factory gates to various persons in the factory. On 28-4-1949, late in the afternoon the boy was returning to the tea shop after having served tea to certain persons in the factory when he had to pass a mob of workmen who were leaving the factory. This mob, it transpired, was attacking the police and the police had to fire in self-defence. Unfortunately a bullet struck this boy and he was severely wounded. He was taken to hospital, but unfortunately died the following day.

( 3 ) THESE proceedings were brought for compensation and it was alleged that the death was due to an accident arising out of and in the course of the boy's employment.

( 4 ) THE employers filed a written statement and the point made by them was that the death was not due to accident. They also claimed that the wages of the boy were not correctly stated.

( 5 ) THE only issue which the learned Commissioner had to try was whether the accident arose out of and in the course of the employment. He found that the accident did not (sic) arise and he accordingly awarded the mother of the boy as a dependent of the deceased workman the compensation which I have already stated.

( 6 ) MR. Sanyal on behalf of the appellants has taken a point that there was no evidence that this boy was a workman within the meaning of that term as used in the Workmen's Compensation Act. It is to be observed that this point was never raised before the learned Commissioner and indeed the point was not taken in the written statement. On the contrary the written statement proceeds on the basis that the. deceased boy was a workman, but that his monthly wages were not properly stated. There was no issue framed on this and it appears to me that we cannot allow- the employers at this stage to raise this point for the first time. It was in effect conceded in the court below that he was a workman and the whole case proceeded upon that basis. Once there was in fact an admission that the boy was a workman, no further evidence to establish that was required. It would indeed be most unjust to allow the point to be taken for the 1st time at this stage and to hold that the evidence did not establish that the boy was a workman. It was obviously conceded and, therefore, the point cannot be raised now.

( 7 ) MR. Sanyal then contended that the accident did not arise out of and in the course of the boy's employment. Clearly the accident arose in the course of the employment because the boy had been delivering tea to persons in. the factory as it was his duty to do and was returning with a tea tray and tea-pot thereon to the canteen or tea shop as he was bound to do. Whilst so returning he received this bullet wound and it is clear that he received it in the course of his employment, that is, whilst he was actually doing what he was employed to do.

( 8 ) MR. Sanyal is prepared to concede that the accident was in the course of the employment, but he contends that the accident did not arise out of the employment. His argument is that death was not due to any special risk of the employment. He has urged that it could not possibly be said that receiving a bullet fired by the police in self-defence can never (sic) be regarded as a special risk of employment of anyone in a canteen.

( 9 ) I do not think that it was necessary for the respondent to establish that the death resulted from some special risk to which the boy was exposed. What has to be decided is whether death was caused as the result of a risk to