( 1 ) THIS is a Letters Patent Appeal against the judgment of a Single Judge of this court in an appeal arising out of a claim under Section 66 of the Employees' State insurance Act, 1948 (hereinafter called the Act ).

( 2 ) APPELLANT No. 1 Messrs. J. B. Mangharam and Co. is a partnership firm (hereinafter referred to as the firm) which is a well-known manufacturer of confectionary. Appellant No. 2 is the manager of the company. One Taromal, an employee of the said firm was working on the power press machine used for cutting tin by pressing the die. The tin pieces are inserted in the machine and after placing the same on the die the workman presses it with his foot. By pressing the die the tin is cut out of the desired shape and size.

( 3 ) ON 16-10-1957 Taromal met with an accident while working the machine. His four fingers were partly cut on account of the falling of the die on his hand. Taromal was an insured person and since the injury was an employment injury, having arisen in the course of his employment, the Employees State Insurance corporation (hereinafter referred to as the corporation) paid a sum of Rs. 1,625 to him as actuarial present value of the periodical partial disablement benefit according to the Employees State Insurance General Regulations, 1950 framed under the Act After the payment was made, the Corporation claimed reimbursement under Section 66 of the Act of an amount of Rs. 1,732. 50 from the firm. The claim wag mainly on the ground that at the time of the accident the machine was not provided with a guard at the die, and as such the firm had contravened the provisions of Section 21 of the Factories Act 1948.

( 4 ) THE Employees State Insurance Court, Gwalior allowed the claim of the corporation with costs. The firm preferred an appeal under Section 82 of the Act, which was dismissed by late Sharma J. Being aggrieved thereby the firm has filed this Letters Patent Appeal.

( 5 ) THE first point that was pressed before us was that the firm was prejudiced in this case as it was not expressly stated in the pleadings of the Corporation (respondent) that the machine in its working was dangerous, and as such likely to cause injury to any workman handling it. It was urged that in the absence of any such pleading there was no issue to this effect and, therefore, there could be no proper trial thereof, It appears that the appellant had raised these contentions before the learned Judge, who decided the appeal. But they were not accepted. The learned Judge dealt with this matter in paragraphs 2 and 3 of the judgment and we are in complete agreement with the observations made therein.

( 6 ) IT is no doubt true that it was not expressly pleaded that the die was a dangerous part of the machine, but that was clearly implicit in the pleadings. It was stated in paragraph 4 of the plaint that at the time of the accident the machine was not provided with a guard at the die, and this amounted to a contravention of Section 21 of the Factories Act, 1948. Thus, according to the respondent, it was necessary to provide a guard in accordance with the provisions of the said section, and the simple issue at the trial was whether a guard was necessary or not, in view of the provisions of the aforesaid section.

( 7 ) THE relevant safety provision is contained in Sub-clause (iv) of Sub-section (1)of Section 21 of the Factories Act, 1948, which is reproduced below for facility of reference: "21. " FENCING OF MACHINERY.- (1) In every factory following namely,- (i ). . . (ii ). . . (iii ). . (iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they" would be if they were securely fenced, the following namely,- ( a ). . . (b ). . . . . (c) every dangerous part of any other machinery; shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use:" so far as the instant

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