Munnalal Patel vs Dr. Subhash Singhai

Anil Sharma, J.—Case is listed for final hearing at motion stage. Arguments heard.

This miscellaneous appeal has been filed u/s 30 of the Workmen''s Compensation Act, 1923, against the award dated 29.04.2006 passed by the Commissioner for Workmen''s Compensation, Labour court, Sagar in W.C. Fatal case No. 16/03, whereby claim of the appellants has been dismissed on the ground that it has not been proved that son of the appellants was working as labour for construction work in the house of the respondent.

Learned counsel for the appellants has drawn attention towards para 22 of the impugned award and submitted that claim has been rejected merely on the ground that in the post mortem report place of incident has not been shown as the house of the respondent but on perusal of paras 20, 21 and 22 of the impugned award it is clear that claim has been dismissed on the ground that it has not been proved that the house where the deceased was working belongs to the respondent. This fact has further been considered by the learned Commissioner that the house where the alleged incident took place is a government building and for repairing/construction of which permission from the government is required.

Otherwise also it has come in the evidence that the deceased was working as daily wager and he was not regular in regular employment of the respondent. He was paid Rs. 125/- per day.

For getting any compensation u/s 10 of the Workmen''s Compensation Act, firstly it is to be established by the appellants that there exists a relationship of workman and employer between the deceased and respondent at the time of alleged incident. According to provisions of Section 3(2) of the Workmen''s Compensation Act, for coming within the definition of "Workman" it is necessary to prove that the workman was in regular employment of the employer. Not only this, it is to be also proved that he had worked continuously for a period of not less than six months in the employment.

The provisions of Section 3(2) referred to by the learned counsel for the appellant are reproduced below:-

(1)...

(2) "If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be as an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment

There is no evidence that the deceased was in the employment of the respondent and he had worked for continuous period of 6 months with the respondent. On the other hand, Devendra Patel (PW-3) has stated that the deceased Dhanraj was working with him. They were working in the house of the respondent. The deceased was paid Rs. 125/- per day and he was paid Rs. 60/- per day. They were working since last 2-3 days prior to the incident. Munnalal (PW-1) and Smt. Ashokrani (PW-2), father and mother respectively, of the deceased have stated that the deceased was working with the respondent since last 15 to 20 days of the incident and both have admitted that Rs. 125/- per day was paid for labour work. Therefore, the deceased does not come within the definition of workman and there was no relation of workman and employer between the deceased and the respondent and it has not been established that the deceased died during employment according to provisions of Workmen''s Compensation Act. Therefore, the learned Commissioner is justified in passing the impugned award by dismissing the claim. Thus, no substantial question of law is involved in this appeal and it is, accordingly, dismissed.