M CSHANTHAMALLAPPA Vs. M DCHANDAPPA SHETTY

JUDGEMENT

(1.) The Appellant was the owner of a motor lorry. The respondent is the father of one Annayya who died on 19-3-1956 in consequence of injuries sustained by him when the lorry had been taken out for bringing a load of stones. The Respondent claimed compensation as a dependent of Annayya under the Workmen's Compensation Act on the ground that the fatal accident arose out of and in the course of Annayya's employment as a cleaner of the lorry under the Appellant., It was contended by the Appellant that Annayya had not been his employee and that the accident had not arisen out of and in the course of employment. The Commissioner for Workmen's Compensation, however, upheld the claim and awarded compensation on the basis that Annayya was getting monthly wages of Rs. 60/-.

(2.) In this appeal though the Appellant challenged the correctness of the Commissioner's finding that Annayya was a workman under the Appellant and the quantum of compensation awarded, the learned Counsel for the Appellant has not pressed these two points and has confined his arguments to the question whether the accident arose out of and in the course of employment.

(3.) It is not disputed that the fatal accident oc-curred while the lorry had been taken out to the neighbourhood of a place called Thrukarahatti for transporting stones. The version put forward on behalf of the Appellant was that Annayya who had accompanied the lorry went away from the Spoil where the loading was taking place saying that be wanted to answer calls of nature, that he returned without being noticed either by the driver or the labourers who had gone alongwith the lorry to do the loading, that he got underneath the lorry and went to sleep there, that the driver and the labourers shouted far Annayya to take him along with them after the work of loading was over, that Annayya did not make his appearance, that they thought he would join the lorry at a shop situated nearby at the roadside that the driver started the lorry on the return journey when some obstruction was felt and they heard the cries of Annayya whom they found injured by one of the wheels of the lorry passing over a part of his body. According to the Respondent the injuries must have occurred while Annayya tried to start the en-gine handle when, owing to some mischance the lorry moved forward and hit Annayya. The Commissioner disbelieved the version put forward by the Appellant, thought that the probabilities were in favour of the Respondent's version, but holding that it was not possible to state the exact manner in which the injuries were caused to Annayya still Opined that the circumstances of the case showed that An-nayya suffered a fatal injury by doing something in his capacity as the cleaner of the lorry and that the accident, therefore, arose out cf and in the course of Annayya's employment.