Decided on December 04,1952



Basheer Ahmed Sayeed, J. - (1.) This is an appeal against an order of the Additional Commissioner for Workmen's Compensation passed on a claim preferred by the respondent-cooly under Section 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 238- 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 under Section 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.
(2.) 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.
(3.) 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.;

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