K. Ramaswami Mudaliar vs Poongavanam

Basheer Ahmed Sayeed, J.—This is an appeal against an order of the Additional Commissioner for Workmen''s Compensation passed on a

claim preferred by the respondent-cooly u/s 10(1), Workmen''s Compensation Act. The respondent-cooly was employed under the appellants for

the purpose of loading and unloading oil barrels from fhe Beach Railway Station to the warehouse of the appellants. The nature of the employment

was that the cooly was working directly under the clearing agents, who were doing the work of transporting oil barrels from the ''station to the

warehouse. The cooly was paid wages by the clearing agents, who received in turn the charges for transporting the oil barrels to and from the

appellants. On 23-8-1947, the respondent-cooly when he was unloading oil barrels, which he had carried in a hand cart from the Beach station to

the warehouse of the appellants in Ibrahim Sahib Street suffered an accident by reason of six barrels in the hand cart slipping down. As a result of

the accident, he broke one of his legs below the knee. He had to be removed to the hospital wherefrom he was discharged after being attended to

by the doctor, who applied plaster of Paris to the injured part. This plaster of Paris had to be kept on by the respondent-cooly for nearly three

months. He could not engage himself in any work during that period and his case was that even after the period of three months, he could not walk

with ease. He claimed compensation for the injury caused to him in the course of his employment under the appellants at the rate of Rs. 60 per

month, which he said was the average wage he was earning before the accident. The learned Commissioner for Workmen''s Compensation, after

recording the evidence of three witnesses on behalf of the claimant & two witnesses on behalf of the present appellant, awarded compensation in a

sum of Rs. 1470 holding that the respondent-cooly was a workman within the definition of the term u/s 2(1)(n), Workmen''s Compensation Act

read with item 26(a) as well as item 28 of Clause II of the Workmen''s Compensation Act. The appellants have preferred this appeal against the

said order.

The first point that has been raised by the learned counsel for the appellants Mr. Mohanarangam Pillai is that the learned Commissioner for

Workmen''s Compensation had awarded a sum of Rs. 1470 whereas the actual claim made by the respondent-cooly was only Rs. 1260. But

actually Mr. Mohanarangam Pillai does not seriously press the quantum of damages if once it is held that the respondent was a workman within the

definition of the term as contained in the Workmen''s Compensation Act. It is, therefore, unnecessary to go into the question as to whether the

claim should have been allowed only as made or any difference should not have been permitted.

The main point however that has been urged by the learned counsel for the appellants is that the claimant does not come within the scope of the

definition of the term ""workman"" provided for in the Workmen''s Compensation Act. ""Workman"" has been defined in Sub-clause (n) of Section 2,

Workmen''s Compensation Act. ""Workman"" means any person (other than a person whose employment is of a casual nature and who is employed

otherwise than for the purpose of the employer''s trade or business) who is (i) a railway servant as defined in Section 3, Indian Railways Act of

1890 not permanently employed in an administrative, district or sub-divisional office of a railway and not employed in any such capacity as is

specified in Schedule II or employed on monthly wages not exceeding Rs. 400 in any such capacity as specified in Schedule II. In Schedule II of

this Act, the persons who are classified as workmen within the meaning of Section 2(1)(n), Workmen''s Compensation Act are set out. Item 26 is

the relevant item for the purpose of this appeal. It is to the following effect:

employed in the handling or transport of goods in, or within the precincts of (a) any warehouse or other place in which goods are stored and in

which on any one day of the preceding 12 months ten or more persons have been so employed.

Sub-clause (b) of item 26 is not relevant for this appeal. The learned Commissioner for Workmen''s Compensation referred to item 26 (a) as well

as to item 28 of Schedule II of the Workmen''s Compensation Act but in that schedule we do not see item 28 at all. Obviously that is a mistake.

Taking the facts of this case as disclosed in the evidence, it is the contention of the learned counsel for the appellants that the respondent could

not be considered to be a workman falling within the scope of the meaning of Section 2(1)(n) and item 26(a) of Schedule II of the Workmen''s

Compensation Act. In the first place, Mr. Mohanarangam Pillai urges that this workman was not employed under the appellants as he was not

being paid wages by the appellants; nor was there any contract of service between the appellants and the said respondent. On the other hand, he

was being paid for his services by the clearing agents and even those services were not in the nature of an employment by the clearing agents for

and on behalf of the appellants but the services of the respondent were simply engaged by the said clearing agents who alone were responsible for

the transport of the oil barrels from the Beach station to the warehouse of the appellants. That such a person could not be considered to be a

workman falling within the definition contained in the Workmen''s Compensation Act is the contention of the learned counsel. Further, the learned

counsel contends that the respondent was not employed by the appellants in the course of their business, their business being only that of vending

oil and not transport of goods from one place to another. The business of transport was not the business of the appellants but that was the concern

of the clearing agents. The clearing agents were the persons who were doing the business of transporting the goods from one place to another

whereas the appellants were only engaged in purchasing and selling the oil so that the point raised by the learned counsel is that if the workman

suffered any injury in the course of the transport of goods from one place to another, he could look up only to the clearing agents for whose

business he was employed and not the appellants whose business was quite different. He points out that the learned Commissioner has gone wrong

in assuming that the business of transport of the oil barrels from the Beach station to the warehouse of the appellants whereas in fact it was merely

the business of the clearing agents.

In the next place the learned counsel points out that the respondent could not be considered to be a ""workman"" within the meaning of Section

2(1)(n) for the simple reason that he was not an employee of the appellants much less an employee of the clearing agents, for, according to the

learned counsel, the evidence discloses that he was only engaged as a causal labourer and not as an employee as contemplated by the provisions

of the Act. On this ground, the learned Counsel would urge that the learned Commissioner for Workmen''s Compensation has gone wrong in the

appreciation of the evidence and also the interpretation of the provisions of the Workmen''s Compensation Act in relation to the facts of the

present case.

The entire order of the learned Commissioner for Workmen''s Compensation and also the evidence both for the claimant as well as for the

appellants has been read out to me. It cannot be disputed that the question whether the respondent in this case is a workman or not is a question of

fact. On the question of fact, there can be no appeal.

The point then arises as to whether the evidence in this case is sufficient to bring the present respondent within the scope of the definition as

contained in the Workmen''s Compensation Act. I may at once state that it is difficult to gather from the evidence that the respondent in this case is

a casual worker. On the other hand, the evidence let in on behalf of the respondent would seem to show that far from his having been a casual

worker engaged for the purpose of transporting oil barrels from the Beach station to the warehouse of the appellants, he has been a regular

employee under the clearing agents who in turn have been employed by the appellants. Therefore on this point, I do not think I can agree with the

learned counsel that on the facts as revealed by the evidence, the respondent could be understood to be merely a casual worker.

It is true that the appellants are not engaged in the business of transporting goods from one place to another and that their business is to

purchase and sell oil as such. But it cannot be forgotten that the appellants cannot purchase and cannot sell oil unless the oil is bought from one

place and transported to their godowns before they could sell the oil. In this case, the oil which they have to sell would appear to be received by

them at a particular place and stocked by them at another place which is distinct from the place where it is delivered to them. Though they are not

directly in any sense doing the business of transporting goods from one place to another, nevertheless the transport of the goods in which they are

dealing is vitally connected with their business and should be considered to be part and parcel of their business in the selling of oil. If their business

was one of merely entering into contracts for sale of oil, which, would be stocked at any particular place, without their having to do anything in the

matter of the stocking of such oil, certainly the transport of such oil could be separated from their business. But as long as they have to get oil and

have to stock them in order to sell them, the transport is a very material and a very necessary part of their business and if in the course of such

transport any worker is employed, it cannot be doubted that this employee is employed to work in the course of their business even though there

might be an intermediary who employs the services of workmen who ought to do the work of transporting for the appellants. The transport of

goods from one station to another may in one sense be said to be-incidental to the business of selling the oil. Even in that case, it cannot be said

that the workman is not an employee for and on behalf ol the appellants to do work for them in the course of their business. In such circumstances

the contention that a workman employed in the transport of oil barrels from one place to another is not employed in the course of and for the

business of the appellants does not appeal to me. In my view the workman must be said to be employed in the business of the appellants which

involves very necessarily the transport of the commodity in which they are dealing from one place to another. In this case, the respondent was

employed in the handling or transport of goods from one place to another when he suffered the injury which goods were being so transported for

and on behalf of the appellants who were dealing in the goods viz., oil in barrels.

The other point ""raised by the learned counsel is that the unloading of the barrels was not done in the warehouse of the appellants themselves. I

do not think that I can, agree with the contention of the learned counsel on this point either for item 26 of Schedule. II of the Workmen''s

Compensation Act provides that such employment in the handling or transport of goods may be in or within the precincts of any warehouse. The

phrase ""within the pre-cincts'' would not restrict the area of operation by the workman to the area contained within the four walls of the warehouse.

The term precincts would naturally include the space that I may be required for the loading and unloading of goods within the warehouse or without

the warehouse, So that a distance of about ten feet that may be required for the cart being brought near to the warehouse of the appellants for

being unloaded, will certainly be within the precincts of the warehouse, so that it cannot he argued that when the cart stands outside on the road

and unloads itself into the warehouse, the workman was not employed in handling or transporting goods within the precincts of the warehouse. In

this case, I think that it would be quite right to hold that the workman was employed in the handling of goods within the precincts of the warehouse.

,

A few authorities have been cited by the learned counsel. One of them is the one relied by the learned Commissioner for Workmen''s

Compensation, viz., -- ''Arumugham v. Nagammal'', AIR 1949 Mad 462 (A). In this case, Mack J. has held that the cooly, who was unloading the

wagon at the time of the accident, was employed in the business of the contractor. The contractor was no doubt doing the business of loading and

unloading under the Military at the Avadi station. If the learned Commissioner was right in holding that the appellants were doing the business of

transport of oil barrels from one place to another, this case would have direct application to the facts of the present case. But as it is, the business

that the appellants were doing was really that of vending the oil, which involved the transport of goods from one place to another. Looking at from

that aspect, this case will have only an indirect bearing. The next case relied upon by the learned counsel for the appellants is the one reported in --

''Rabia Mahomed v. The Agent, G. I. P. Railway AIR 1929 Bom 179 (B). There the G. I, P. Railway entered into a contract with a company in

which the latter was to construct a transmission line to carry electric power to various sub-stations on the railway. It was held that the setting up of

an overhead electric cable for the purpose of transmitting electrical power to the railway was not ordinarily part of the trade or business of the

principal. I do not think that that case has any application to the facts of the present case. In this case the commodity that was being transported

was the very commodity in which the appellants were dealing.

Mr. Mohanarangam Pillai next referred me to a decision of Satyanarayana Rao J. in -- Chodipalli Masenu Vs. Gampala Narasamma, . In that

case, there was specific agreement with one M and the owner of a boat whereunder it was agreed that in consideration of M paying as hire to the

owner of the boat a sum of money, the boat should be allowed to carry a particular cargo. Further the owner was under no responsibility for

anything including the salaries of the crew. Of the crew, the respondent''s husband met with death through an accident when the boat was returning

from its destination. The widow of the deceased workman claimed compensation from the owner of the boat under the Workmen''s Compensation

Act. It was held that the contract with the owner was the demise of the boat and the owner should not be made liable for the damages claimed.

This case was based on a specific contract which excluded the owner of the boat from any responsibility and the learned Judge held that if the

widow had im-pleaded M, who hired the boat, perhaps a decree might have been passed against him. Mr. Mohanarangam Pillai further referred

me to para. 1114 in Volume 34 of the Hailsham''s Edition of Halsbury''s Laws of England. Sub-para. 2 of that paragraph says ""a person whose

employment is of a casual nature and who is employed otherwise than for the purposes of the employer''s trade or business, not being a person

employed for the purposes of any game or recreation and engaged or paid through a club."" Then the learned author adds that ""no general definition

can be given of the expression ''employment of a casual nature''; it seems to imply something midway between the regular employment of a

workman and an engagement for a single day."" ""The word ''casual'' is used colloquially, not as a term of precision."" The further part of the

paragraph is that ""if the employment though casual is for purposes of the employer''s trade or business, it is within the Act"". Though it is difficult to

define what exactly is meant by ""casual worker"" I do not think that that point arises for consideration in this appeal for the simple reason that I have

held that the worker in this case is not a casual worker but is a worker employed in the regular service of the clearing agents for the purpose of

transporting the goods of the appellant. Even if he be a casual worker but if he is employed in the business of the appellants according to the

English Act, the workman will be entitled to compensation.

In the result, I am of the opinion that the compensation awarded by the learned Commissioner is just and proper. I do not think there are any

circumstances which call for my interference with the order of the learned Commissioner.

The appeal is, therefore, dismissed.