- (1.) THIS appeal has been directed by the widow, son and daughters of Om Parkash deceased against the order of the Commissioner under the Workmen's Compensation Act, Ludhiana, whereby he disallowed their claim for Rs. 9,000 by way of compensation for the death of Om Parkash.
(2.) THEIR case was that On Parkash was white-washer and he was employed on or about January 19, 1968, by the respondents, to whitewash the factory, where they had been carrying on the business of hosiery, at the rate of Rs. 12 per day as his wages. On January 22, 1968, when he (Om Parkash) was whitewashing the wall of the said factory, a jangla (a sort of parapet) had collapsed, as a result of which it fell down on his head. He was immediately removed to the hospital, but he died on account of the head injury sustained by him. Therefore, Smt. Kamla Devi claiming herself to be the widow, Vijay to be the son and Kiran Bala and Seema to be the daughters of Om Parkash, claimed from the respondents Rs. 9,000 as compensation for his death, with the allegation that he had died on account of accident, which had taken place during the course of his employment. The respondent resisted the claim of the appellants with the pleas that Om Parkash was not a workman and he was not in their employment, and the accident, which resulted in his death, did not take place during the course of his employment, and that as a matter of fact, they had contracted with one Badal to whitewash the factory and he (Badal) had employed Om Parkash as a casual worker to whitewash the building of the factory. Hence, the Commissioner, who heard the case, raised the following issues: 1. Whether the petitioner was an employee of the respondent? 2. Whether the petitioner suffered an accident in the course of employment?
(3.) TO what compensation are the petitioners entitled to? He held under issue No. 1 that Om Parkash was not a workman and in that view of the finding, he returned verdict on issue No. 2 in the negative. He, however, found under issue No. 3 that the amount of compensation recoverable by the appellants, if issues Nos. 1 and 2 had been decided in their favour, would have been Rs. 9,000. As a result of his findings on issues Nos. 1 and 2, the Commissioner dismissed the claim. Dissatisfied with the said result, the appellants have come up to this Court in appeal. 3. Issues Nos. 1 and 2 are not properly worded. The word "petitioner" is wrongly mentioned for "om Parkash" therein. Further, as would be presently seen, it was for the respondents to prove that Om Parkash was not a workman. Therefore, issue No. 1 should have been "whether Om Parkash was not a workman ?" However, the law is well-settled that wrong wording of an issue or misplacement of onus of proof respecting a question of fact does not warrant the setting aside of an impugned order or judgment or remand of the case, especially when the parties to the case were cognizant of the point involved and they had led evidence in proof or disproof of the same. The way, in which the parties led evidence and had conducted the case, shows clearly that issue No. 1 related to the question of Om Parkash being a workman. There is absolutely nothing on the record to show that the parties or any one of them has been prejudiced in his cause on account of the misstatement of "petitioner" in place of "om Parkash" in issues Nos. 1 and 2 or on account of the onus of issue No. 1 having been placed on the appellants. Therefore, nothing turns on the wrong wording of the said issues or of the wrong misplacement of onus on the appellants. ;