BISUMAL NAGRAJ OSWAL JAIN Vs. KUNDA ASHOK SHINDE

JUDGEMENT

(1.) THE Applicants before the learned Commissioner for Workmen's Compensation, were the 22 years old widow and a minor child of the deceased, who was 25 years old at the time of his accident on September 30, 1984. Their marriage had taken place in the year 1983. The deceased was survived by the widow and her two months child at the time of the accident. It was her case before the learned Commissioner that on the fateful day of September 30, 1984 the opponent came to their residence and took the deceased with him for work on a scooter. In the evening at 6 p. m. , however, the opponent returned to her only to inform that her husband was no more alive as he had died on account of electric shock received by him in the premises of the temple which were being constructed. This news w. as perhaps a greater shock for the young lady. It appears that the body of the deceased was taken for medical treatment but it was in vain as the doctor had declared him dead. The funeral took place wherein the relatives and friends of the deceased and villagers, including the Sarpanch, and even the opponent, all were present. It was her case that her husband was employed by the opponent as a labourer as the opponent had undertaken a contract from the villagers collectively to build a temple in the village. According to her, the deceased was getting Rs. 900/- per month as wages. She claimed an amount of compensation, initially to the tune of Rs. 27,000/- with interest and penalty as provided under the law on the basis that the deceased was a workman employed by the opponent and he died due to an accident arising from and out of employment on September 30, 1984. The opponent, therefore, was liable to pay the amount of compensation, interest and penalty. Before filing the said application a notice was duly served on the opponent claiming compensation from the opponent. The opponent had replied the same denying his liability in toto. The opponent pleaded before the Commissioner, in his written statement, that there was no employer-employee relationship between the opponent and the deceased. He totally and flatly denied that the deceased was ever employed by him. It was, therefore, pleaded, at the outset, that he was not a contractor at all to build the temple. He tried to say that he was only a supplier of building material and he was not doing any construction work. The second plea, which he had taken in his written statement, was that there was no contract of service between him and the deceased. He further tried to plead that there was some sub-contractor namely Shri Sajjan Dhiwar, who might have employed the deceased. The next plea, which was taken by him, was that the fateful day of the accident was not a working day at all, being Sunday it was weekly off on which day no work was being done. He has also submitted that on that day the deceased workman was not supposed to come on work and to do any work at the site of the temple. He further tried to say that the deceased had entered the temple from back door as he did not get the key of the lock put on the temple, from the house of the Sarpanch, or from the wife of the Sarpanch, and therefore, he climbed into the temple from its back side and got himself electrocuted. The very next ingenuine plea, that was taken, was that the deceased workman did not satisfy the criteria or the definition of workman given under Section 2 (1) (n) read with Entry 8 of Schedule 11 of the Act. It was submitted on his behalf that the height of the temple was not 12 feet and, therefore, in any case the inclusive definition given in item 8 of Schedule II was not satisfied and, therefore, the Applicant, widow of the deceased, was not entitled to get any compensation. Shri P. K. Joshi, Advocate for the opponent further continued to argue vehemently mat the age of the deceased was not proved and that no documentary evidence was produced before the Commissioner in respect of his age. According to him, the age, which is recorded on the death certificate to be 24 years, was given by someone at the time of funeral and, therefore, it cannot be believed. It was also pointed out by Shri P. K. Joshi that originally the claim filed was for Rs. 27,000/- and the learned Commissioner, accepted the oral prayer on behalf of the Applicant to enhance the amount of compensation from Rs. 27,000/- to Rs. 75,765/- on the ground that there was an amendment in the Workmen's Compensation Act effective from July 1, 1984. enhancing the amount of compensation under the Act. The amount of compensation payable to the applicant was, thus, enhanced by the learned Commissioner from Rs. 27,000/- to Rs. 75,765/- applying the amendment as the accident had taken place after the enforcement of the said amendment. Shri P. K. Joshi has argued that there was no amendment application in writing, made on behalf of the Applicant and, therefore, the Commissioner suo-motu could not have enhance the amount of compensation. He also submitted that there was no evidence adduced on behalf of the applicant to substantiate her claim and, therefore, the entire order of the learned Commissioner was vitiated and deserves to be quashed and set aside.

(2.) ON the basis of the pleadings, the learned Commissioner framed the following issues and, after recording oral and documentary evidence, answered all of them in favour of the Applicant.

(3.) AS per final order.