- (1.)THIS miscellaneous appeal under section 30 of the Workmen's Compensation Act is directed against the order dated 20. 12. 1979 passed by the Commissioner for Workmen's Compensation, Indore in case No. 57 of 77, dismissing the appellant's claim for compensation on the ground that he failed to prove that the injury was caused during the course of his employment with the respondent, although it has been found as a fact that the injury sustained by the appellant's hand, while working on the thrasher resulted in loss of earning capacity to the extent of 60%, thus entitling the appellant to claim compensation as per item No. 4 of Schedule I, Part II of the Workmen's Compensation Act.
(2.)THUS, the short question involved in this appeal is whether the appellant was in the employment of the respondent, when he sustained the injury on 13. 4. 1976 while working on respondent's thrasher. The respondent while admitting the fact that injury was caused, while the appellant was working on the thrasher installed in his field but has denied that the appellant was in his employment. According to him one Kishan S/o Rama of the village had approached him to permit to thrash grams on his thrashing machine, which he (respondent) permitted at gratis. It was Kishan, who had engaged the appellant for helping him in thrashing, and promised the appellant 5 Kg of gram for the help rendered by the appellant. The respondent also pleaded that after about eight or ten days of the accident, a panchayat was held in the village, which awarded Rs. 1661/- to the appellant as compensation for the injury suffered by him. This amount was accepted by appellant's father on behalf of the appellant vide receipt, Ex. D-3 It may be noted here, that admittedly Poonamchand, appellant's father was in respondent's employment.
(3.)COUNSEL for the appellant has assailed the finding on the question of employment as perverse. Kishan has not been examined by the respondent as a witness to prove his case. Shri Amarsingh, learned counsel contended that the appellant had paid process for him, and should have examined. There is no force in the argument. Primarily, the burden lay on respondent to examine Kishan as it was his case that the appellant was engaged by Kishan as a helper, in thrashing gram, he should have proved it by examining Kishan.