FUNNOUS ALIAS KURIAN Vs. K O DEVASSY

JUDGEMENT

(1.) An employer, opposite party in a workmen s compensation case has approached this court with this appeal challenging the award of compensation in favour of dependents of a deceased in an accident in the boat yard of the appellant. The death took place due to electric shock.

(2.) The main contention urged by the appellant is that the deceased was engaged only as a casual labourer, that too, for cleaning the compound, where both the residence as well as the factory building are situated and that the said casual employment was in no way related to the trade or business of the appellant. Therefore he was not a workman in terms of Sec.2(n) as it stood before the amendment effected in 2000. The provision as it stood then reads as follows: workman- means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of employer s trade or business) In order to exclude one from the term as defined, it shall have to be proved that his employment was of casual nature and his employment was otherwise than for employer s trade or business. That is why the appellant contends that he was employed only for the cleaning of the compound which does not have any relation with the trade or business of the appellant. Therefore the commissioner ought not have awarded any compensation on account of death due to electric shock in the factory building, as the deceased was unauthorisedly operating an electric hand drill which was not expected from him. It is further submitted that this contention was specifically raised in the written statement, but the commissioner did not advert to that contention. It is pointed out from the order of the commissioner that the commissioner jumped into the conclusion that the deceased was a workman as defined in Sec.2(n) to find as follows: The learned counsel for the opposite party argued that the deceased was not an employee of the opposite party. On the other hand the learned counsel for the petitioner argued that the opposite party admitted that the accident was occurred at the premises of the opposite party s establishment, and the opposite party is liable to pay compensation. In the circumstances stated above petitioners are established that the deceased met with an accident while he was doing work in the opposite party s establishment.

(3.) In the light of the contention raised by the appellant it was incumbent on the commissioner to examine whether the casual nature of the employment of the deceased was in connection with the trade or business of the employer. Merely because the accident took place in the establishment, especially when it is contented that both the factory building and residential building are in the compound, the Commissioner cannot jump into the conclusion that the deceased met with an accident while he was doing work in the opposite party s establishment. Therefore the order has to be set aside, counsel submits.