R.P. Sharma vs Rajendra

Atul Kumar Jain, J.—This civil misc. appeal was filed under Section 30 of the Workmen''s Compensation Act, 1923 (hereinafter referred as the "Act of 1923") by appellant Dr. R.P. Sharma against the order dated 11.02.2005 passed by the Workmen''s Compensation Commissioner, Kota in case No. 32/2001 titled as Dr. R.P. Sharma v. Rajendra and Kumari Rinku.

I have heard both the parties and perused the record. Copies of the relevant documents were supplied to this court by the counsel of the parties.

It is admitted position that while unloading stones from a truck by the labourer Chhotu Lal, marble slabs fell down upon him causing his death. At the time of death he was aged 25 years and his monthly income was Rs. 1500/- per month.

Accident occurred on 16.4.1996 and death occurred on 21.4.1996. Claim was filed by his minor son Rajendra and minor daughter Rinku through their uncle Suresh Chand because after death of Chhotu Lal his wife had gone in nata-marriage with some other person and mother of Chhotu Lal also expired during the hearing of the matter before the Commissioner at Kota.

At the time of accident and at the time of filing of the claim the Workmen''s Compensation Act, 1923 was not amended so the provisions of Workmen''s Compensation Act 1923 will apply in the present matter and the amended Employee''s Compensation Act 1923 will not be applicable in the present matter.

Under the old Act of 1923 the claimant should have been a ''Workman'' within the definition of Section 2 (1n) of the Act. That Section reads as follows.

"Workman" means any person (other than 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) who is-

(i) a railway servant as defined in Sec. 3 of the Indian Railway Act, 1890 (9 of 1890), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Sch. II, or

(ii)employed in any such capacity as is specified in Sch. II,

whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of [the Armed Forces of the Union] and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependants or any of them."

It means a person who is employed otherwise than for the purposes of employers trade or business cannot be a ''workman'' and a person who is an employee of a causal nature, also cannot be a workman. It has been argued in the present case by the appellant that job of Chhotu Lal was of a casual nature and his job was not at all related to the trade or business of the appellant because appellant is a doctor and unloading of stones from a truck cannot be said to be a trade or business of the doctor. Even if, we assume that the construction work for appellant''s house or his nursing home was going on, then also Chhotu Lal (deceased) being husband of a staff member of the appellant could have been termed as a casual labour and nothing else and it can be said that he was not at all related with the trade or business of Dr. R.P. Sharma.

AW1 Smt. Pushpa Bai, the mother of the deceased had been examined before the Commissioner and she has stated that her daughter-in-law (Mohar bai) was in the job of sweeper with the appellant in his hospital at a monthly salary of Rs. 15,00/- and in her cross-examination she has stated that when Mohar Bai got some infection/wound in her hands then the appellant used to take work from her husband Chhotu Lal (deceased) in her place. She has stated that at the time of death of Chhotu Lal, his son Rajendra was 12 years old and his daughter Rinku was 14 years old, both the children are now adulted.

AW-2 Chhotu Lal son of Mathura Lal is a witness, states that Chhotu Lal (deceased) was unloading a truck of marble and during that process he met with an accident and he was crushed between the marble slabs. He says that the persons present on the spot had been able to rescue Chhotu Lal and then he was treated of Dr. R.P. Sharma but when the condition became serious, he was shifted to MDS Hospital, Kota and then during the treatment on 21.4.1996 i.e. after five days of the accident Chhotu Lal succumbed to his injuries. He further states that previously Chhotu Lal was a rikshaw puller but when his wife Mohar Bai got some wounds in her hands then in her place he had started working as a sweeper with the appellant and a salary of Rs. 1,500/- per month was drawn by him in the name of his wife.

Statement of appellant Dr. R.P. Sharma were also recorded before the Commissioner but his statement are nothing but total denial of the incident and in the facts and circumstances of the case, I am of the firm view that Dr. R.P. Sharma has not told the truth before the Court and his statement deserves to be discarded altogether.

In the light of aforesaid factual situation, if we look into the rulings submitted by the parties then the position of law which emerges, as follows:--

(1) For the respondent-

M.C. Annappa v. Salvadar John Pinto, First CMA No. 11642/2006(WC) decided by Karnataka High Court on 22.9.2012, in this case it was held that the Commissioner may condone the delay either expressly or impliedly in his order while passing the award.

It is pertinent to mention here that the accident occurred on 16.4.1996 and the claim was filed in the year 2001 on 10.9.2001. As per Section 10 of the Act of 1923, no claim for compensation be entertained by a Commissioner unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death. It has been argued by the appellant that provisions of Section 5 of Limitation Act 1963 do not apply to the claims filed under Section 10 so the delay could not have been condoned by the Commissioner. But if we look into the proviso to Section 10(1b) then we come to know that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the claim has not been preferred in due time as provided in Section 10(1) of the Act of 1923, if he satisfied with the failure so to prefer the claim was due to sufficient cause. It has been argued that no application for condonation of delay was filed by the claimants before the Commissioner and no specific order for condonation of delay was passed by the Commissioner so the claim was perfectly time barred and it was not proper for the Commissioner to pass the award in favour of the claimants in such a time barred claim.

Looking to the arguments of the appellant the judgment of Karnataka High Court (supra) is perfectly applicable to the matter and I am of the view that there was sufficient cause with the appellants for filing the claim with delay because their father had expired in the accident, mother had gone into nata-marriage with some third person and their grand mother Smt. Pushpa Devi too also expired soon after she was examined before the Commissioner.

"(2) Next ruling relied upon by the respondents is Oriental Insurance Co. Ltd. Vs. Deviram and Others, (2012) 134 FLR 339 : (2013) 1 RLW 374 In this case also it was held that the claim filed with delay may be entertained by the Commissioner if there was sufficient cause to condone the delay because in cases of WC Act, normally a liberal view must be taken in favour of the claimants because the Act of 1923 is a piece of social security and welfare legislation.

(3) Next case relied upon by the respondents is Union of India (UOI) Vs. Dhara Singh and Another, (2008) 117 FLR 719 In this case also delay was condoned looking to the sufficient cause given by the claimants.

(4) Last case relied upon by the respondents is of Gauhati High Court which was reported in Sandhya Rani Das and Another Vs. Nilratan Paul and Another, (2006) 1 GLR 498 . In this case it was held that when applicants are illiterate and if they did not know about their right to get compensation provided to them under the provisions of WC Act then the delay should be condoned in favour of the claimants."

On the other hand, appellant has strongly argued that the work of deceased Chhotu Lal was of a casual nature and his job was not related with the trade or business of Doctor R.P. Sharma so he cannot be called workmen in the strict sense of the term as defined in the Act of 1923 and so his claim should be dismissed.

Appellant relies upon the following ruling:--

Rebati Gantayat Vs. Haguru Sethi and Others, (1986) 1 ACC 497 : (1986) ACJ 248 : (1986) 61 CLT 137 . This was a case decided by Orissa High Court wherein, it was held that if the claimant is not able to prove that deceased was employed in trade or business of the employer then he will not be ''Workmen'' and his employer will not be liable to pay any compensation under WC Act 1923. In that case the deceased was doing job of plucking tamarind for employer and his death was caused during the course of plucking and it was held that claimants would prove that deceased was employed in trade or business of employer and so not being ''Workmen'', the claim was liable to be dismissed.

The aforesaid ruling exactly applies to the case in hand. A doctor is not supposed to doing the trade or business of marble stones and even if, a deceased Chhotu Lal was unloading the marble stones from the truck, he could not be called a ''workmen'' as per the definition of ''workmen'' given in the old Act of 1923.

Thus, this court though has full sympathy with the claimants, but still this court cannot go out of the legal parameters and so the claim of Rajendra and Rinku (both adults now) against Dr. R.P. Sharma should have been dismissed by the Commissioner Workmen''s Compensation Act, Kota. The award passed by the Commissioner in this case is not as per the provisions of law and so it deserves to be quashed, which is hereby quashed and set aside. Appeal of Dr. R.P. Sharma is hereby accepted.

Copy of this order be sent to the Commissioner Workmen''s Compensation Act, Kota. The amount of the award, if deposited by the appellant before the Commissioner Workmen''s Compensation Act, Kota should be repaid to the appellant immediately.

This civil misc. appeal and stay petition stands disposed of accordingly.