DANNI DEVI AND ORS. Vs. GURBUX SINGH

JUDGEMENT

(1.) THIS is an appeal under Section 30 of the Workmen's Compensation Act (thereinafter called the Act) against the order of the Commissioner dated 20.10.1966 dismissing the application filed by the Appellant for the grant of compensation.

(2.) THE Appellants filed an application before the Commissioner on the allegation that they are dependants of one Gokal Ram (deceased) who was employed by the Respondent Gurbux Singh. It was alleged that on 25th March, 1964 Gokal Ram received personal injuries in an accident arising out of and in the course of his employment. The cause of the accident was that on 25th March, 1964 while working on the premises and white -washing the floor on which he had got his support gave way with the result that he fell down and died after he had been removed to the hospital. It was pleaded that the monthly wages of Gokal Ram amounted to Rs. 125/ - per mensem and the Appellant was entitled to a lump sum payment of Rs. 7,000/ - as compensation. The Respondent Gurbux Singh in his reply, denied that the deceased was his employee. The plea taken was that Gokal Ram (deceased) had taken a sub -contract of white washing and colour washing from Respondent Gurbux Singh. It was also denied that any parapet gave way and that the accident to Gokal Ram took place during the course of the employment. On the pleadings of the parties the following issues were framed:

(3.) THE main question that arises in this appeal is whether the deceased was a workman within the meaning of the Act. Section 2(n) of the Act defines "workman" to mean any person (other than a person, whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business who is employed on monthly wages not exceeding five hundred rupees in any such capacity as is specified in Schedule II. The application by the Appellants was based on the allegation that the deceased was employed on a monthly wages of Rs. 125/ - per mensem. The Commissioner, however, has found that is not correct and the deceased was merely a sub -contractor of a main contract which had been taken by Respondent Gurbux Singh. It is clear from the evidence of RW1 Partap Singh that a contract for the construction work of D. T. U. quarters had been taken by Respondent Gurbux Singh. The case of the Respondent, as deposed to by him as RW is that deceased had taken white washing job by way of subcontract in respect of D. T. U., quarter's contract. It may be mentioned that the accident by which deceased died took place while white washing was being done of these very D. T. U. quarters. According to the Respondent the terms of sub -contract was that deceased was to be paid Rs. 6/ - for each one thousand sq. feet completed work of three coats. It was on the basis of this assertion that it was maintained by the Respondent, that the deceased was not a workman, within the meaning of the Act. The Appellants, however, had pleaded that the deceased was employed on a monthly wages of Rs. 125/ - per mensem. But the evidence on record does not support this assertion. In this connection a perusal of an application Ex. Rl under Order 33, Rule 1 C.P.C. dated 10th November, 1961 filed by the present Appellants for the recovery of Rs. 1397.50 from Respondent had alleged that Gokal Ram had been engaged by the Defendant Gurbux Singh in the job of white washing the D. T. U. staff quarters at G. T. Road and the stipulation was to pay Gokal Rs. 7/ - per thousand, sq. feet for three coats of whitewashing after deducting the cost of material supplied by the Respondent for the white washing. It was alleged that at the time of death two coats had been applied and after deducting the material supplied a suit for the balance of Rs. 1397.50 was being filed. Similar allegation had been made in the notice Ex. R2 dated 2nd June, 1964 given by the counsel of the Appellant. There also the mode of payment was said to be Rs. 7/ - per thousand sq. feet and for the cost of material to be adjusted from this payment. AW4 the widow of Gokal Ram has admitted para 2 of Ex. Rl which gives this mode of payment to Gokal Ram. In that view of the matter the finding of the Commissioner that the deceased was not employed on a fixed monthly wages of Rs. 125/ - per mensem urged in the application, is not open to objection. But that does not necessarily lead to the result that Gokal Ram deceased was not a workman within the meaning of the Act. A person may still be a workman and not an independent contractor even if he is paid by piece work. It is not possible to accept the contention that simply because a persons has not been paid fixed wages per day or per month he ceases to be a workman.