KANTABAI Vs. SATYAGOPAL

JUDGEMENT

(1.) THIS appeal is directed by the L. Rs. of the deceased under Section 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') against the order dated March 8, 1996 passed by Commissioner of Workmen's Compensation Indore in case No, 14/83.

(2.) THE facts leading to this appeal, in short are that the deceased Nathu Singh was employed as driver by respondent No. 1 on his tanker No. C. P. F. 8306 insured with respondent No. 2. His monthly salary was Rs. 1000/- with allowance of Rs. 300/- per month. On March 5, 1981 the deceased was going to Baroda driving this tanker. In the way near Sultanpur, it turned turtle and the deceased died due to the injuries sustained by him in the accident. The L. Rs. of the deceased, his, widow and sons, filed claim application on September 4, 1981 before the Commissioner, Workmen's Compensation, Indore, for award of compensation of Rs. 2,22,000/ -. The respondent No. 2 resisted the claim and inter alia pleaded that the deceased had no valid driving licence at the time of accident. The learned Commissioner on appreciation of evidence held that the appellants pleaded that the deceased was earning Rs. 1000/- salary and Rs. 300/- allowance per month, therefore, he was not covered under the definition of "workman" under Section 2 (n) and dismissed the application. Hence, this appeal.

(3.) SHRI Punegar, learned counsel for the appellants, submitted that the learned Commissioner committed error in holding that the appellant was not workman as his monthly earning was more than Rs. 1000/ -. He contended that the respondent/insurance Co. did plead that the appellant was not workman. Even otherwise, the Commissioner held in issues Nos. 3 and 4 that the salary, of the deceased was Rs. 1000/per month, therefore, it could not be held that he was not workman on the ground that his monthly salary and allowance were pleaded to be Rs. 1000/- and Rs. 300/- respectively. He also submitted that amendment made in Section 4 of the Act by amending Act of 30 of 1995, has abolished the limitation regarding the wages for determining the status of workman. On the other hand, Shri Dandwate, learned counsel for the respondent No. 2, submitted that the amending Act was not applicable to the case in hand as the accident took place in the year 1981 and the amending Act has no retrospective effect. He submitted that the application of the L. Rs. itself shows that the monthly wages of the deceased was Rs. 1300/- more than Rs. 1000/ -. Therefore, he was not workman.