JUDGMENT - VAZE V.V., J.: - It was like any other day at the Chembur level crossing. The line man had pulled down the gates (and literally so, because of the counter-poising heavy weight at the other end of the fulcrum) to allow the train to pass by unimpeded. On the other side of the two gates were queues of motorised vehicles, bullock-carts and pedestrian who were all biding their time along with the cattle for the train to pass by and the gates to open. One such vehicle belonged to Duke Company which is engaged in the manufacture of aerated waters. The company had a fleet of specially designed trucks to transport crates of their bottled products to the retail outlets. To load and unload the crates the company had a complement of men and Gulab Baksh was one of such loaders perched on the crates of aerated waters. 2. As there was no knowing as to when the train would pass by, Gulab Baksh who was bored by waiting decided to combat the ennui by having a smoke. His stock of bidis was exhausted and he waned to cross over the railway line to buy a bundle of bidis from the wayside shop. The absence of foot bridge posed no problem to him as the flimsy fencing put up by the railways left enough space for a man to squeeze through between the wires. Gulab Baksh could have easily crossed the ten feet track of rails and metal to safety but due to some inexplicable reason did not make it and was knocked by an on-coming train. He was hospitalised and the surgeons thought it to be in his best interest to amputate his leg below the knee. Gulab Baksh filed an application under section 46 of the Employees' State Insurance Act ('the Act') to claim 60% permanent disability and the employees' Insurance Court at Bombay declared that the applicant Gulab Baksh had sustained an employment injury on 27-10-1974 and directed him to appear before the medical board for getting his disability and loss in his earning capacity assessed. The Employees' State Insurance Corporation appeals. 3. Counsel for appellant relies on (R.B. Moondra Co. v. Bhanwan)1, A.I.R. 1970 Raj. The Employees' State Insurance Corporation appeals. 3. Counsel for appellant relies on (R.B. Moondra Co. v. Bhanwan)1, A.I.R. 1970 Raj. 111 for the proposition that if the employee had done the negligent act for the benefit of the employer it could be said to be an accident which arose out of and in the course of employment. In Moondra's case the deceased who was employed as a driver on the appellant's truck which was used for the purpose of carrying petrol in tank reported to his employer that the tank was leaking. The tank was partially filled with water with a view to detecting the place from where the leakage occurred. The employer then asked the deceased to enter the tank to locate the exact spot from where the leakage occurred. The deceased entered the tank and being confident that it contained no petrol and was filed with water lighted a match stick to spot the leakage. The naked light ignited the vapours of petrol and deceased received burns to which he succumbed. 4. According to Mr. Jaykar the entry of the deceased-driver into the petrol tank was for the benefit of the employer and is distinguishable from the facts of the present case where the employee was proceedings to purchase bidi for his own smoking pleasure. 5. Certain observations of Willes, J., in (Barwick v. English Joint Stock Bank)2, 1867 L.R. 2 Ex. 259 at 265 were construed to mean that a servant was acting outside the scope of his employment when at the time the accident occurred his intention was to benefit himself and not his employer. Consequently Barwick was supposed to lay down the Rule that the wrong must be intended to benefit the Master. This Rule held the field for quite a considerable time till (Lloyds v. Grace Smith Co.)3, 1912 A.C. 716 where the House of Lords gave it a quietus by stating firstly that the principal is liable for the fraud of his agent acting within the scope of his authority whether the fraud is committed for the benefit of the principal or for the benefit of the agent and that Barwisk is not an authority for the proposition that the principal is not liable for the fraud of his agent unless committed for the benefit of the principal. In addition, the House of Lords overruled the dicta or Lord Bowen in (British Mutual Banking Co. v. Charnwood Forest Ry. Co.)4, 1887(18) Q.B.D. 714 at 718 and of Lord Davey in (Ruben v. Great Fingall Consolidated)5, 1906 A.C. 439 which intended to follow Barwick erroneously. 6. I would not wish to be thought that the question of benefits to the servant will be invariably irrelevant; rather in some situations the fact that the servant intended to benefit himself alone would take out the tort from being in the course of his employment. Thus, if a driver takes his master's vehicle “on a frolic of his own” for his personal benefits and making a detour from the road which he should have ordinarily taken and commits an accident injuring third person the master would not be liable as the frolic was solely for the benefit of the driver. Similarly, even at the place of work if the servant breaks the bones of another the question whether he was acting in the course of his employment will depend upon the intention of the servant; that is to say whether he assaulted the third party with a view to protect the interest of property of the master or did so out of personal vendetta. But making a short trip across the road to fetch the bundle of bidis is not an incident that would fall within the latter category. 7. Further, Counsel relies on (Barnes v. Nunnery Colliery Company Limited)6, 1912 A.C. 44 where a boy employed at a colliery jumped into a train of empty tubs in order to have a ride to his place of work instead of walking the distance as he should have ordinarily done and in the course of the journey in the tub hit against the roof of the mine and was killed. It was a common practice of the boys employed in the mine to ride to tubs to their work but the practice was expressly forbidden by the management and prohibition was enforced as far as possible. It was a common practice of the boys employed in the mine to ride to tubs to their work but the practice was expressly forbidden by the management and prohibition was enforced as far as possible. Rejecting the claim of compensation under the Workmen's Compensation Act and House of Lords observed:- “In these cases under the Workmen's Compensation Act a distinction must, I think, always be drawn between the doing of a thing recklessly or negligently which the workman is employed to do, and the doing of a thing altogether outside and unconnected with his employment. A peril which arises from the negligent or reckless manner in which an employee does the work he is employed to do may well be held in most cases rightly to be a risk incidental to the employment.” The applicant-Gulab Baksh- so the argument proceeds, was not doing a thing which he was employed to do and hence should be disentitled to a benefit under the Act. 8. Barnes's case can easily e distinguished from the facts of the present case inasmuch as in Barnes's case the management were aware that the boys were in the habit of using the tub train as a fun ride to work and realising the danger involved in this process had expressly prohibited the workmen from doing so. It is nobody's case that the management of Duke Sons had prohibited their employees from smoking bidis while on duty and the nature of their product being aerated waters (not being any combustible or inflammable one) was such that ordinarily smokers would not constitute any source of danger or risk. In a well known case of (Century Insurance Co. v. Northern Ireland Road Transport Board)7, 1942(1) All.E.R. 491, the employee in question was employed on petrol tanker to fill the petrol tank at a garage. He went through all the proper motions and acted in the course of his employment in driving his tanker upto right point and in connecting the tanker to the tank. He then, admittedly for his pleasure and own comfort, lit a cigarette and threw the lighted match on the ground. He went through all the proper motions and acted in the course of his employment in driving his tanker upto right point and in connecting the tanker to the tank. He then, admittedly for his pleasure and own comfort, lit a cigarette and threw the lighted match on the ground. The House of Lords found no difficulty whatsoever that what the driver did was out of the course of his employment and Lord Wright observed at p. 497:- “The act of a workman in lighting his pipe or cigarette is an act done for his own comfort and convenience and at least, generally speaking, not for his employer's benefit. That last condition, however, is no longer essential to fix liability on the employer (Lloyds v. Grace Smith Co., 1912 A.C. 716). Nor is such an act prima facie negligent. It is in itself both innocent and harmless.” 9. Century Insurance Company's case has recently been followed in (Harrison v. Michelin Tyre Co. Ltd.)8, 1985(1) All.E.R. 918 albeit with some hesitation: - “One cannot, I venture to think, imagine a more unauthorised act by any employer, a more reckless act by any employee or a more prohibited act by almost every standard one could think of and probably prohibited by regulations too. In that case the point was strongly taken in the Irish courts that he was on a frolic of his own. That perhaps is an instance where the word 'frolic' is an understatement: I would have thought on a 'madness' of his own.” 10. Compared with the Century Insurance company's situation where the employee had thrown a lighted match on the ground in a petrol filling station, I find that the act of the applicant-Gulab Baksh is crossing the railway line to fetch a bundle of bidis on the assumption that generally there is enough time for a man to cross a ten feet track cannot be called something which is not an accident, “arising out and in the course of his employment.” A certain amount of relaxation, a recreation may add the right punctuation to the tedium of work and possibly improve the output of the worker. One may not go all the way to the situation in Century where the driver threw a lighted match on the ground of a gas-station; one may even sympathise with the indignant judge of Harrison when he calls this act 'madness'; but surely Gulab Baksh's act of crossing the railway track for having a smoke is neither frolic nor madness. It was at the best an error of judgment; he over-rated himself as a sprinter. 11. In this view of the matter I find that the learned Judge of the Employees' Insurance Court was right in declaring that the applicant had sustained an employment injury. The appeal fails and is dismissed with costs. Appeal dismissed. -----