Vijay Ram vs Chander Prakash

The appellant is an employer against whom an award in the amount of Rs. 14,250/ has been made by Assistant Labour Commissioner

Udhampur, with pewers of Commissioner under Workmen's Compensation act, 1923, hereinafter the Act, under section 4 (1) (d) (ii) of the Act to

compensate the respondent for his temporary disablement caused due to as injury suffered bf him.

The respondent's case before the Commissioner was that the appellant had taken him from Udhampur to village Talwada on 30111977 to

remove some defect in a compressor. On the following day, while he was going to the site of the appellant's work alongwith his Munshi where the

compressor vijay he was hit by a stone which flew high from a blast, resulting in his temporary, disability to do any work for a period of five years.

The appellant's case on the other hand was that the respondent did not fall within the definition of a workman, as such, his claim for compensation

under the Act, deserved to be rejected. The parties produced : evidence in support of their respective cases and the Commissioner on

consideration of the same held the respondent to be a workman employed by the appellant and awarded the compensation holding further that the

injury sustained by the respondent was caused by an accident which arose out of and in the course of his employment.

Mr. Gupta appearing for the appellant has assailed the award on a number of grounds which I proceed to deal with one by one. His first

contention is that the Commissioner has not followed the procedure laid down in Rules 28 and 29 of the Rules made under the Act, which

tantamount to a misdirection on a question of law, vitiating the entire award. Rules 28 and 29 enjoin upon the Commissioned to frame issues on the

points on which the parties are at variance and further require him to dispose of the issues of law first. These Rules, I have already held, are in

substance a reproduction of rules 1 and 2 of order 14 C. P. C. and their nonobservance in the absence of miscarriage of Justice will not vitiate the

Commissioner's award, assuming that nonobservance of statutory rules is a misdirection on a question of law. There can be no question of

miscarriage of justice if the parties go to the trial fully knowing each other's case, lead evidence in support of their respective cases, and also

address arguments on the points in dispute, (see Vijay Ram Vs. Janak Raj) Civil first Misc. Appeal No : 11 of 1978 decided today). The same

thing has happened here also. The parties have gone to the trial fully understanding each other's case, have led evidenc and 'discussed the whole

case theadbare before the Commissioner daring the course of arguments. The commissioner too has adverted himself to all the points in

controversy between the parties. No fault can thus be found with his award on the ground of nonobservance of the rules.

The second ground relates to the absence of relationship of employer and workman between the appellant and the respondent. Mr. Gupta has

not challenged the findings of the Commissioner either that the appellant hired the services of the respondent for removing the defect in the

compressor of that the injury was caused to the respondent by an accident which arose out of and daring the course of his employment while the

.respondent was proceeding to the place where the compresser lay and was hit by a stone rising high from a blast. His contention, however, is that

even on the facts pleaded by the respondent, he did not fall within the definition of a workmen given in see. 2 (1) (n), which after omitting its

unnecessary portion is reproduced as below :

Workman means any persons (other than a person whose employment is of a 'casual nature who is employed otherwise than for 'the purpose of

the employees trade or business) who is.

i) a railway servant as defined in section 3 of the Indian Railways Act, 1890 (9 of 1980 not permanently employed in any administration district or

sub divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or.

ii) empoyed (...............) on monthly wages not exceeding five hundred rupees; in any such capacity as is specified in schedule II.

Amplifying his argument. Mr. Gupta has contended that the respondent was not a workman for three resons : one that his appointment was

casual i. e. merely for removing the defect in the compresser, two, that repairing a compresser is not one of the works mentioned in Schedule II,

and three, that no wages had been settled with the respondent before the accident took place It is in evidence that the appellant was constructing a

road for which he needed the compresser. Making repairs to the compresser was vitally connected with the working of the constuction of the

road. Construction of road is included in cl. viii (c) of Schedule II. While determining whether or not a person is a workman aliberal construction

which tends to promote the statutory objects of the Act which is beneficial in character has to be placed on see. 2 (i) (n). Viewed thus, it is obvious

that the respondent was employed to work in a capacity specified Schedule II.

True, the respondent was employed casually because he had merely to remove the defect in the compresser, but this alone will not be enough to

exclude from the definition of a workman. As the language of sec. 2 (i (n) Shows, two conditions must be satisfied before a persons can be

excluded from the.....................definition of a workman : one, that his employment is of a casual nature, and two, that he is not employed for the

purposes of the employer's trade or business. The word 'and' occurring between the expression whose employment is of a casual nature and who

is employed otherwise than for the purpose of the employer's trade of business, has to be read conjunctively. Where therefore a person's

employment even though of a casual nature, is yet for the purposes of the trade or business of his employer he would be deemed to be a workman

within the meaning of sec. 2 (i) (n). Authorities on the points are legion, (see Hirjibhai Lakhamsibhai Vs. Damodar, A.I.R., 1957 Madhya Pradesh

49, T. N. Sitharama Reddiar Vs. A Ayyaswami Goundar, AIR 1956 Mad. 212 Smt. Raj Rani Vs. Firm Narsing Dass Mela Ram and anr. A.I.R.

1964 Punjab 315, and M/s B. D. Ghodake & Sons Vs. Mahaboob Sab, Fakrisab Devagiri, 1974 Lab. I. C. 290).

The third condition under Cl. (ii) of section 2 (i) (n) also to be fulfilled that the workman's wages do not exceed Rs. 500/ per month. What has

to be shown in this behalf is not that the workman was in fact employed on monthly basis, but that his emoluments on an average did not exceed

Rs. 500/ per month. A person employed on daily wages of Rs. 9/, for instance would be a workman whose monthly wages do not exceed Rs.

500/ Once it is shown that services of a persons have been engaged on the basis of payment of the employer, the onus to show that he did not fulfil

all the conditions of a workman would lie on the employer Support for this proposition is available from two reported decisions viz; Gorelal Vs.

Dropadibai and others AIR 1963 Madhya Prades 24, and Smt. Raj Rani and anr. Vs. Firm Narsing Das Mela Ram and anr. AIR 1964 Punjab

The respondent in his claim petition had clearly alleged that his monthly income did not exceed Rs. 500/ This allegation has not been denied

by the appellant, either by filling a written statement, or in his statement recorded by the Commissioner. In the absence of anything pleaded or

shown to the contrary, the Commissioner was justified in concluding that the respondent did not have to charge a sum higher than what on average

would make his income Rs. 500/ a month. Viewed thus, the respondent satisfied all the conditions of workman given in section 2 (i) (n) and the

finding of the commissioner on this point is hot open to question.

The view which I propose to taken in regard to the last contention raised on behalf of the appellant, it is not necessary to express any opinion at

this stage on the third ground, which is to the effect that the compensation has been calculated and held payable by the commissioner under a

wrong provisions of the Act.

Mr. Gupta's last contention is that there is no medical evidence to support the commissioners finding on the nature and extent of disablement

caused to the respondent on account of the injury sustained by him. The certificate issued by the medical board, argued the learned counsel, could

not have been relied upon to base such a finding on it, when no doctor constituting the Board had been orally examined by the Commissioner,

adding that such a finding did give rise to a substantial question of law within the meaning of sec. 30. There is a lot of force in this argument. The

appellant had no doubt required the respondent to be examined by a Medical Board in order to ascertain the nature and extent of his disablement,

but beyond that he did not go even a step further and never agreed that what ever statement the Board would make in its certificate would be

binding on him as evidence. true, the certificate issued by the Board as alleged by the appellant to be produced without any objection, but this

merely meant that he waived its proof only i. e. it was what it purported to be but not its relevance. There is ample authority for the proposition that

oppoinion of Doctor like any other expert, must be given orally, and a mere certificate issued by him cannot be read in evidence unless so provided

under any other law e. g sec. 32 of the Evidence Act or sec. 510 of the Code of Criminal Procedure, He must enter the witnessbox and subject

himself to crossexamination (B. Poornaish Vs. Union of India, AIR 1967 A. P. 338, the Merchant Steam Navigation Co. .Ltd. Vs. Mohammaed

Kunju Appukka and another. AIR 1956 Trav. C. 55, and Ali Akbar Vs. Java Bengal Line AIR 1937 Cal. 697). There is no provision in the Act

under which a certificate issued by a Doctor simpliciter can be read into evidence. There was thus no evidence on which the Commissioner could

have possibly based his conclusion that the respondent had sustained an injury causing a temporary disablement in him to do any work for a period

of five years. To this extent, therefore, his award stands vitiated. While confirming his findings that the respondent was a. workman employed by

the appellant and that he sustained an injury due to an accident which arose out of and in the course of his employment, I remit the case back to the

Commissioner with the direction that he will examine any of the doctors constituting the Medical Board, determine afresh in the light of the

statement so recorded the nature and extent of the disability caused to the respondent as well as the quantum of compensation payable to him

under the Act, and after hearing the parties give his award. Parties to appear before the Commissioner on 26th June, 1980.