ALIMOHAMED JUMARDIKHAN Vs. SHANKAR TUKARAM POTE

JUDGEMENT

(1.) THIS is an appeal against a decision of the Additional Commissioner for Workmen's Compensation. He has awarded Rs. 810 on account of an accident caused to a daily labourer who was travelling in her employer's motor lorry for loading and unloading the lorry with bricks. The accident occurred on June 25, 1943, and death took place three days later ; but notice of the accident was not given by the representatives of the injured woman until July 22, and failure to give adequate notice is one of the grounds of this appeal by the employer.

(2.) THIS Court is not entitled to interfere with the findings of fact arrived at by the Commissioner for Workmen's Compensation except on a substantial question of law, and that would of course include a finding of fact which was not based upon evidence; and it has been argued in this appeal that the Commissioner was wrong in his finding that the injured woman was employed by the employer. There is however evidence in that respect, though it is not particularly good evidence. The evidence of the driver of the lorry is that she was engaged on the road by the employer's mukadam, who himself was in the lorry at the time; and though there is the evidence of another occupant of the lorry to the effect that the, employment was by the driver, and though the muster roll (as is not unnatural) does not contain any mention of this woman having been employed that day, there is undoubtedly evidence on which it was possible for the Commissioner to come to his finding, and it is therefore not open to us to interfere. We take it that she was in fact in the employ of her employer at the time of the accident.

(3.) IT is next argued that the deceased was not a workman within the meaning of the Act even on the facts found. "workman" is defined in Section 2 (1) (n), and it includes a person who is employed on monthly wages not exceeding Rs. 300 in any such capacity as is specified in Schedule II. There is the authority of this High Court in Ellerman's City and Hall Lines v. "thomas (1937) 39 Bom. L. R. 1230 to show that monthly wages not exceeding Rs. 300 do not restrict the definition of workman to people who are in fact employed on monthly wages, thereby excluding people on daily wages. An addition was made to Schedule II by Government Notification No.7685, dated March 1, 1038, so as to include persons employed for the purpose of loading 6r unloading any mechanically propelled vehicle or in the handling or transport of goods which have been loaded into any mechanically propelled vehicle. On the authority of a case decided by a bench of this High Court in Parsu v. Bombay Port Trust (1929) 31 Bom. L. R. 1304, it has been argued that the words "employed for the purpose of" and the words "employed in" mean exactly the same thing, so that an accident which occurred while the employee was on the way to work could not be the subject of a claim to compensation, it not having occurred while the employee was employed in the actual work. That case, however, could have been decided more appropriately on a different ground altogether, namely that the person who suffered the accident was at the time of the accident acting altogether outside the scope of his employment and not merely acting in something that was incidental to his employment but was not the actual employment In the present case it could hardly be accepted that the lorry, which as we know was being driven to a brick field for the purpose of picking up bricks, should be expected to wait at the brick field while the person injured walked; and we take it therefore that her travelling to the brick field Was within the scope of her employment. There is a later case of this High Court to which I have already referred, Ellerman's City and Hall Lines v. Thomas, in which a man was drowned after the work had come to an end and was yet held to be a workman within the meaning of the Act. We consider ourselves free to follow the later of these two decisions. In our view the injured woman was not only killed in the course of her employment but was also a workman within the meaning of the Act.