- (1.) THIS order will dispose of two FAO Nos. 395 of 1988 (Sh. Narang Singh and another Versus Superintending Engineer, Mechanical Maintenance Circle, Guru Nanak Dev Thermal Plant, Bathinda) and FAO 1079 of 1988 (Narang Singh and another versus The Desh Sewak Co -operarive L&C Society Ltd. and others) The parents of the deceased workman Lachhman Singh are before this Court in appeal under the Workmen's Compensation Act, 1923 (now called Employees' Compensation Act, 1923) against impugned order dated 24.12.1987 passed by the Commissioner for Workmen Compensation, Bathinda non -suiting the claimants by returning a finding that the deceased Lachhman Singh is not a workman as defined in Section 2 (n) of the Workman's Compensation Act, 1923. Section 2 (n) presently stands omitted by Act 45 of 2009 w.e.f. 18.01.2010. The definition of 'workman' under Section 2 (n), as it stood on the date of death on 14.05.1985, read as follows: - (n) "workman" means any person who is - - (i) a railway service as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub -divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ia) (a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or; (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing, but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."
(2.) A few facts would be necessary to spell in order to understand what the Commissioner has done. There appears to be no doubt that Punjab State Electricity Board had engaged Desh Sewak Co -operative Labour and Construction Society Ltd., Bathinda through tender for carriage and unloading of coal on the site of the thermal plant of the Board. The Society engaged a number of tractors for execution of the contract. In this way, Lachhman Singh was engaged to ply tractor No. PUT 9341, during the course of which work he met with an accident on 12.05.1985 on the premises of the plant, which led to his death on 14.05.1985 on account of injuries sustained by him in the accident. This tractor was said to be owned and possessed by one Balwinder Singh son of Niranjan Singh (non party). The owner of the tractor is said to have been paid Rs. 8/ - per trip for ferrying coal to site. Lachhman Singh died on the night intervening 13/14.05.1985. It was the respondent's case that Lachhman Singh was paid Rs. 200/ - per month by Balwinder Singh, tractor owner and therefore the Society disclaimed liability before the Court. It was urged by the Society before the Commissioner that it was not liable to indemnify the Board in case the Board as principal employer was ordered to pay compensation to the dependents of the deceased. The defence of the Punjab State Electricity Board was that the work was carried out under work order issued by the Board. Deceased Lachhman Singh was employed by the Society and, therefore, the Society was the employer of Lachhman Singh. It was their stand that in case the Board is ordered to pay compensation then it should be taken that the Society is under obligation to indemnify to Board. The following additional issues were framed by the Commissioner: - 1 -A Whether deceased Lachhman Singh was a workman and if so to what amount of compensation his dependents are entitled for and from whom out of the P.S.E.B. and Des Sewak Society? OPA. 2 -A Whether the Des Sewak Society is liable to indemnify respondents No. 1 to 3 PSEB and others in case they are ordered to make the payment to deceased Lachhman Singh? OPR.
(3.) IT is a common case of the Society and the Board that the Board invited tenders for carriage and unloading of coal to the site of the plant and the tender of the Society was accepted by the Board. There is also no doubt that tractor No. PUT 9341 was one among the tractors engaged by the Society for purposes of execution of the work order. It is also an admitted fact that Lachhman Singh died due to accident while driving the tractor within the premises of the Board. Lachhman Singh was 25 years of age at the time of death. AW3 Narang Singh had deposed that Lachhman Singh was paid monthly wages to the tune of Rs. 550/ - by the Society. The Commissioner is chary in accepting the statement of AW 3 Narang Singh on the question of receipt of monthly wages on the ground that the witness has nowhere stated that the monthly wages of the deceased Lachhman Singh was settled in his presence between the Society and Lachhman Singh. The witness has also not said to have spoken directly as a witness to payment and receipt of monthly wages in his presence. This evidence has been discarded as hearsay in nature and no reliance has been placed on it. On the other hand, RW1 Mansa Ram stated that the owner of the tractor was paid per trip and Rs. 200/ - per month was being paid as salary to Lachhman Singh by the owner of the tractor Balwinder Singh. In short, the payment was not paid monthly but was trip wise. The Commissioner observed that there was privity of contract between Lachhman Singh and the Society, since the former was being paid by the tractor owner. The Commissioner has identified two issues, which he thought were incumbent to prove. Firstly, that the deceased Lachhman Singh was employed in a capacity qualifying as employee duly specified in Schedule II; and Secondly, that he was employed as a monthly wager in receipt of wages not exceeding Rs. 1000/ -. The first issue has been answered in affirmative. The driver engaged in work involving transportation of goods is a workman under Schedule II of the Act. The claimants have been non -suited on the second issue by holding that the deceased Lachhman Singh was not employed on monthly wages. To reach this conclusion, he has discarded the deposition of AW3 Narang Singh who spoke of monthly wages being earned by Lachhman Singh. The trip wise story has been believed from the deposition of RW1 Mansa Ram. The word 'wages' has been defined in Section 2 (m) of the Act, which reads as follows: - (m) "wages", includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of [an employee] towards any pension or provident fund or a sum paid to [an employee] to cover any special expenses entailed on him by the nature of his employment.;