Decided on November 09,1972

Kasturbai Ratanchand Gandhi Appellant
S.S. Badole Respondents


VAIDYA,J. - (1.) THE above First Appeal is filed under Section 30 of the Workmen's Compensation Act, 1923. The appellants are the widow and children of one Ratanchand Amienand Gandhi, in respect of whose death on April 15, 1962, they claimed compensation. It was alleged by them that Ratanchand was in the employment of the respondent. On April 15, 1962, the respondent, who owned Motor Truck No. 1203, was, according - to the appellants, driving it with goods loaded in it from Osmanabad to Bhir near Alni Naka within the jurisdiction of the Workman's Compensation Authority at Osmanabad. The truck met with an accident and Ratanchand died instantaneously. The head of Ratanchand was cut from his body. Ratanchand was an expert motor mechanic and was attending the motor truck along with the respondent as a part of his duty. It was also claimed by the appellants that the death was caused to Ratanchand by the accident arising out of and in the course of his employment and hence the respondent was liable to pay the compensation of Rs. 7,000 on the basis of the salary of the deceased Ratanchand at Rs. 125 per month. The application was made by the appellants to the Court of the Civil Judge, Senior Division, Osmanabad, functioning as the Authority under the Workmen's Compensation Act, on March 24, 1964.
(2.) THE application was resisted by the respondent, while admitting that the truck belonged to the respondent, he denied that he was driving the truck as alleged by the appellants. He contended that he did not know motor driving and that the respondent's brother was driving the truck. It was further alleged that while the truck was going from Osmanabad to Bhir, one motor truck belonging to Yermala Dairy was going from Osmanabad, that the deceased Ratanchand was sitting on the back side, that he was not doing so in the course of his employment but he was going for his private work to Bhir, that he was sitting in the truck in violation of the promise given by him to the respondent's brother not to project any part of his body or lean outside the truck; that the deceased Ratanchand put his head outside the truck and the truck belonging to Yermala Dairy, which was coming from the opposite direction, dashed against his head. It was alleged by the respondent that the death was caused not as a result of or in the course of the employment with the respondent. It was also contended that the deceased Ratanchand was not a workman or an employee on April 15, 1962, as defined in the Workmen's Compensation Act. It was further alleged that the deceased Ratanchand was not drawing a salary of Rs. 125 per month, that before the accident he was casually employed for 13 days from March 17, 1962 to March 29, 1962 and thereafter he was discharged. The daily wages paid were Re. 1 per day till March 29, 1962 and the amount of Rs. 13 was paid to him in full discharge of liabilities to him. It was admitted that Ratanchand used to serve temporarily on the vehicles of others and was generally accepted as a cleaner, but the respondent submitted that the allegation made by the appellants that he was an expert motor mechanic was not correct. In view of these contentions, the learned Civil Judge, Senior Division, framed six issues. He held that he had jurisdiction to try the application, that the appellants were the dependants and heirs of the deceased Ratanehand within the meaning of the Workmen's Compensation Act, that the deceased was at the time of the accident in the employment of the respondent and he met with the accident while working as an employee of the respondent. In spite of these findings, however, he dismissed the application on the ground that the deceased Ratanchand was merely a cleaner and hence he was not a workman, as defined in Section 2(1)(n) of the Workmen's Compensation Act, 1923. While doing so he recorded a finding that in the event of the appellants succeeding, the compensation payable to the appellants was Rs. 3,500 on the basis of the salary of the deceased at Rs. 105 per month. In para. 8 of the judgment, the learned Judge appears to have made a mistake in saying that 'there is no evidence to show that the cleaner normally gets Rs. 105 per month.'
(3.) FEELING aggrieved by the said decision rejecting the application, the appellants have filed the above First Appeal in which Rs. 3,500 is mentioned as the value of the claim for advocate's fees and in ground No. 25 it is mentioned that Rs. 3,500 should have been awarded as compensation. Mr. Bhadekar, learned Counsel for the appellants, however, has submitted that the figure Rs. 3,500 was taken by mistake on his part from the judgment of the Civil Judge without verifying from the actual scale prescribed in the statute and in the ends of justice the appellants should be allowed to amend the ground by substituting Rs. 3,500 by Rs. 7,000 as per Schedule IV substituted by Act 64 of 1962 with effect from February 1, 1963.;

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