Judgment : Oral Judgment: This is an appeal preferred by the Maharashtra State Electricity Board (M.S.E.B.) being dissatisfied with the judgment and order passed by the learned Commissioner for Workmen’s Compensation and Civil Judge Senior Division, Parbhani in F.A. No. 5 of 1988 decided on 19.09.1992 whereby the appellant was directed to pay compensation of Rs. 20,000/-with interest at the rate of 6% from the date of petition till realisation, to the respondents. 2. Briefly stated it is case of the appellant/original respondents that respondent No.1 is widow and respondent Nos. 2 and 3 are sons of deceased Shamrao Sudke. Shamrao Sudke was admittedly in the employment of the appellant-Board at Sub-Division, Selu. 3. As per the original respondents, the deceased Shamrao was working as an Electric Operator/Lineman since 211.1974. On 16.01.1987 he was attached to urban area of Sub-Division, Selu. While he was on duty, he was directed by superior authority to attend a fuse call on the pole near Nutan Mahavidyalaya, Selu. The deceased went to attend the call and he was given understanding that line is off and he was directed to climb over the said pole and to connect the fuse. While attending the duty and trying to connect fuse, Shamrao was caught by a live wire. As a result, he remained in hanging position on the pole. Thereafter, Executive Magistrate and other came and body of the deceased was separated from the pole by the concerned authorities and taken to the Civil Hospital, Parbhani. He was admitted for treatment. He died two days after admission due to electric shock. According to the petitioners, the deceased was 28 years old and death has occurred in the course of employment. The claim was made of Rs.30,000/-. 4. Present appellant resisted the claim by written statement at Exh.23. It is stated that the deceased was working as an Operator. Lineman and Operator are different cadres. At the time of the accident Shamrao was not on duty. He was working as an Operator in the control room. He had no duty to attend the fuse call on the pole near Nutan Mahavidyalaya, Selu. His duty was only to take meter reading at the control room. The distance between fuse call centre and control room is about 2 kms. He was working as an Operator in the control room. He had no duty to attend the fuse call on the pole near Nutan Mahavidyalaya, Selu. His duty was only to take meter reading at the control room. The distance between fuse call centre and control room is about 2 kms. Since it was not duty of deceased Shamrao to climb on the pole and attend the fuse call, it cannot be said that the accident had arisen out of and during the course of employment. Therefore, respondent is not liable. The age and income given by the respondent in the application are denied. It is stated that the appellant is not liable to pay any compensation. It is argued on behalf of the appellant that the learned Commissioner ought to have rejected the claim because there was evidence of three witnesses on behalf of the appellant/Board and a log book was produced on record. It was sufficiently proved that the deceased was not on duty and that he was working only as an Operator and had no other duty. 5. On behalf of the original respondents/petitioners respondent No.1 Gangubai is examined at Exh.31. She is widow of the deceased. She said that on the date of the incident i.e. 16.01.1987 at 2.00 p.m. the deceased left the house for attending duty and at 2.30 p.m., she learnt that her husband had sustained electric shock and was removed to the hospital. So, she rushed to the spot, saw her husband lying in a jeep. He was removed to Parbhani Hospital, where he died two days thereafter. She thereafter stated that she was not aware if her husband was on duty in control room from 10.00 p.m. on 15.01.1987 to 6.00 a.m. on 16.01.1987. 6. On behalf of the appellant Durgadas Rangnath Hamdapurkar is examined at Exh.35. He was working as a Junior Engineer. There is Sub-Division at Selu. Deceased Shamrao was working under him. He stated that deceased Shamrao, S.V. Gahat, Shahane and Bande were also operators. From 10.00 p.m. on 15.01.1987 to 6.00 a.m. on 16.01.1987 the deceased was on duty as an Operator and he produced the log record to that effect. It is proved at Exh.36. It is a register. According to him Mr. Deceased Shamrao was working under him. He stated that deceased Shamrao, S.V. Gahat, Shahane and Bande were also operators. From 10.00 p.m. on 15.01.1987 to 6.00 a.m. on 16.01.1987 the deceased was on duty as an Operator and he produced the log record to that effect. It is proved at Exh.36. It is a register. According to him Mr. Gahat had joined his duty and continued to work from 6.00 a.m. to 2 p.m. The distance between control room and Nutan College is half furlong. There was high tension line. One Shahane operator made phone call to him about the incident. There was indicator of tripping the line. Therefore, he along with Assistant Engineer rushed to the spot and saw the deceased hanging on the pole. Thereafter, with the help of dry wood, they took down Shamrao. First aid was given to him. He was taken to hospital. He made endorsement at Exh.36. It is argued that though the endorsement is made and signed, it did not bear any date. Moreover, the log book produced does not bear timings of duties. It is also admitted in cross-examination by the Junior Engineer, Hamdapurkar that a separate duty register is maintained. The learned Commissioner has emphasised that such duty register ought to have been produced. 7. There is also evidence of Gahat at Exh.37 on behalf of the appellant. He said that deceased Shamrao was on duty from 10.00 p.m. on 15.01.1987 to 6.00 a.m. on 16.01.1987 and he had taken charge from Shamrao. P.W.3 Shahane took charge from him from 2.00 p.m. He further stated that he did not know if previously deceased Shamrao was working as a Lineman. He also stated that there is separate duty register maintained in their office. The log book which is produced on record only contains reading and nothing more. 8. Ramkrishan Shahane examined at Exh.38 on behalf of the appellant stated that it was his duty to take reading of the meter after every hour in the control room. They are not expected to go on fuse call. He stated that the incident had taken place at 2.56 p.m. on 16.01.1987. He did not know for what reason the deceased had climbed the pole. 9. They are not expected to go on fuse call. He stated that the incident had taken place at 2.56 p.m. on 16.01.1987. He did not know for what reason the deceased had climbed the pole. 9. The learned Commissioner after reproducing the evidence of the three witness examined by the appellant, in para No. 9 of the judgment stated that the duty register ought to have been produced. Production of merely log book which contains meter reading was not enough. He also observed that respondent No.1-Gangubai was illiterate lady and it cannot be expected of her to tell in what capacity her husband was working. He also emphasised that no record whatsoever was produced to show that deceased Shamrao was working as an Operator and he had no duty as a Lineman. He observed that the present appellant ought to have filed the documents to show that at the relevant time deceased Shamrao was working as an Operator and not as a Lineman. He further stated that ordinarily if it was not a part of duty of deceased Shamrao to climb the pole and attend to the fuse call, he would not have done so. He observed that production of duty register would have helped to know what duty was assigned to the deceased on the date of the incident and for what period. Entry at Exh.36 i.e. log book and the admissions of the witness of the appellant were found unsafe to rely. He also expressed doubt regarding the entries in the log book (Exh.36), as time was not mentioned on the log sheet at the relevant page of Exh.36. 10. It may be noted that the appellant has come with a case that the deceased climbed on the pole to commit suicide. Surprisingly no question was put to widow of deceased Shamrao nor any of the witnesses have whispered regarding commission of suicide or any motive for the same. The learned Commissioner has thus considered that without any reason the deceased would not have climbed on the pole. It is nobody’s case that deceased was mentally challenged. It is not disputed that there was a fault on the pole that needed to be removed. It is not case of the appellant that the deceased was not trained in rectifying such fault. It is nobody’s case that deceased was mentally challenged. It is not disputed that there was a fault on the pole that needed to be removed. It is not case of the appellant that the deceased was not trained in rectifying such fault. In good faith and to meet an emergency a superior may direct someone at hand to rectify the fault and the subordinate may act on such oral instructions and therefore the learned Commissioner expressed opinion that the deceased must be on duty. Considering the circumstances, we cannot say that the inference drawn by the learned Commissioner is unreasonable or improper. Here we have to consider preponderance of probabilities. It is difficult to believe version of the appellant that deceased was not on duty and he undertook to certify the fault on his own and the accident had not occurred during the course of employment. 11. The learned Judge has also relied upon case of Mackinnon Mackenzie and Co. Private Ltd., V/s. Ibrahim Mahommad Issak, AIR 1970 S.C.1906. In para 5 following observations are made. "5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it". The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered". In other words, there must be a casual relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises ’out of employment’........." I may also refer to following portion from para No. 6. "........... But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. "........... But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it. 12. The learned advocate for the appellant Shri Joshi relied upon case of Smt. Rohini Shamrao Burud V/s. M/s. Hindustan Petroleum Corporation, 2006(1) ALL MR 44. In that case it is observed that whether accident arose out of and in the course of employment, question is a mixed question of law and fact. There is a substantial question of law and can be considered in appeal against order of Workmen’s Compensation Commissioner. Merely because accident occurred during duty hours of workman, it could not be held that the accident arose out of and in the course of employment. In that case as paras 7 and 8 show that deceased was riding a motorcycle when he suffered the accident. The evidence on record suggested that the deceased met with an accident, which occurred when he had left the official place of work. There was no evidence on record at all to indicate that he was sent out for the official duty when he met with the accident. Nor was there any evidence on record to establish the fact that there was a practice of sending the general workers out on official duty during their shift timings. So, in the facts and circumstances it was held that the deceased had gone out during duty hours to attend his private work and therefore the employer was not liable. 13. Shri Joshi pointed out that under Section 10 of the Workmen’s Compensation Act, 1923, a notice ought to have been issued of the accident and no such notice was given by the respondents. Therefore, the claim petition itself was not tenable. 13. Shri Joshi pointed out that under Section 10 of the Workmen’s Compensation Act, 1923, a notice ought to have been issued of the accident and no such notice was given by the respondents. Therefore, the claim petition itself was not tenable. However, this Court in the case of Jaichand Somchand Shah V/s. Vithal Bajirao Marathe, A.I.R. 1933 Bombay 109, has held that no notice under Section 10 of the Workmen’s Compensation Act is necessary, where injured workman was removed to the hospital from the factory and he had approached the employer several times for compensation and employment, but was referred to Court. 14. It was argued before this Court in this case that Junior Engineer Hamdapurkar along with other members of the staff have taken Shamrao had taken to the hospital. So, the appellant was well aware of the accident. As per last proviso to Section 10(1), the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause. 15. The respondents have filed cross-objection and stated that they are entitled to higher compensation. To this I may refer to para 17 of the judgment of the Commissioner. Therein the Commissioner has stated that respondent No.1 in her statement said that her deceased husband was getting Rs.1600/- per month as salary. In cross-examination she stated that she was not aware of if deceased was getting Rs.1600/-as monthly salary. The respondent had merely denied the figure mentioned by the petitioners. The petitioners/original respondents had not called upon the present appellant to produce documents regarding salary. So, there was no evidence whatsoever before the Commissioner and in absence of any evidence regarding salary of deceased Shamrao minimum compensation of Rs.20,000/- was awarded. Advocate Shri Joshi pointed out that the claim of the respondents was for Rs.30,000/- and under Order 7 Rule 7 of the Code of Civil Procedure, the respondent cannot claim higher compensation by filing cross-objection. In absence of evidence before the Commissioner, his order awarding minimum compensation was legal and proper. 16. In the Circumstances the First Appeal and the Cross Objections are dismissed and disposed of.