RAM SARUP Vs. GURDEV SINGH

JUDGEMENT

(1.) THIS is an appeal under Section 30 (1) (a) of the Workmen's Compensation Act (8 of 1923), hereinafter called the Compensation Act, against the Judgment and award dated 31 October 1962, of Sri J. S. Chatha, Commissioner under the Compensation Act at Patiala. Jangir Singh, brother of the respondents, was employed as a cleaner on the truck of the appellant and was travelling in the said truck in the course of his employment when the vehicle overturned near Rajpura. As a result of the accident Jangir Singh was killed on the spot, The respondents, as dependants of the deceased, filed a petition before the Commissioner for payment of compensation, By order dated 31 October 1962, the Commissioner allowed the application of the respondents with costs and ordered the appellant to pay Rs. 1,800 as compensation to them. This appeal has been preferred against that order.

(2.) AT the hearing of the appeal before me on 3 December 1965, Sri T. S. Mangat, the learned Counsel for the appellant, contended that each of the respondents was above the age of 18 years at the time of the accident and was, therefore, not a dependant as defined in Section 2 (d) of the Compensation Act. "dependant" under that section includes a minor brother but not a brother who has attained majority. In the appeal, no notice was issued to the respondents directly but the appellant got the notice issued to the guardian and next-friend of the respondents on the assumption that they were minors. On the guardian having failed to represent the minors Sri N. B. Bhatia, advocate, had been appointed by this Court to represent them as Court-guardian. In view of the contrary stand taken up by the appellants I directed, on 3 December 1965, that the appellant may appear personally to make a statement as to the age of the respondents at the time of the accident and at the time of filing this appeal. In pursuance of that order Ram Sarup, appellant, has appeared before me today and has made a statement in which he has denied complete knowledge of the age of the respondents either at the time of the accident or today. The only plea which the appellant had taken up at the trial of the petition before the Commissioner regarding the respondents not being the dependants of the deceased was that the respondents were not dependants on the deceased in the economic sense and that they were in fact being Actually maintained by Mahan Singh, their next-friend, before the Commissioner. After carefully going through the evidence, the Commissioner rejected that plea. The learned Commissioner held that there is no reason to disbelieve the evidence produced on behalf of Gurdev Singh, etc. , to the effect that they had really been dependent upon the deceased. The question of age of the respondents was not at all raised by the appellant before the Commissioner either in the appellant's written statement or at the time of arguments. The learned Counsel tried to read the evidence led at the trial of the case to show that one of the witnesses for the respondents had stated that at least one of the respondents had attained majority at the time of the accident. No amount of evidence can be looked into on a plea which was never raised. Nor was the alleged discrepancy put to Mahan Singh when he entered the witness-box so that he could clarify the position. Even today, the appellant himself is not able to say that the respondents were not minors at the time of the accident or as to what is their age now. In this situation, I do not find any force in the first argument of Sri Mangat and hold that at the relevant time the respondents were dependants of the deceased within the meaning of Section 2 (d) (iii) (d) of the Compensation Act.

(3.) IT is next contended by Sri Mangat that the Commissioner should have dismissed the application of the respondents on the short ground that the deceased was not a "workman" within the meaning pf Section 2 (n) of the Compensation Act. The relevant part of that definition is that workman means any person employed on monthly wages not exceeding 400 rupees in any such capacity as is specified in Schedule II to the Act. In Schedule II as many as 32 classes of employees are enumerated. Item (xxv) relates to persons employed as drivers. There is no separate category of "cleaners," or even "conductors" mentioned in the said schedule. The very first item in the schedule provides that any person who is employed otherwise than in a clerical capacity is connexion with the operation or maintenance of a vehicle propelled by mechanical power or in connexion with the loading or unloading of any such vehicle would be a workman within the meaning of Section 2 (1) (n) and would be subject to the provisions of that section. Sri T. S. Mangat contends that though a driver and a conductor of a motor vehicle would be employed in connexion with the operation of the vehicle, a cleaner is not so employed. It is, therefore, contended by him that, in the absence of evidence to show the nature of the duties of the deceased, it cannot be said that merely by virtue of the nature of his employment as a cleaner he was employed in connexion with the operation or maintenance of the truck. I find no force in this contention. Cleaning of a motor vehicle is essentially a part of its maintenance. "cleaning" has been denned in Stroud's Judicial Dictionary, Vol. I, at p. 497, as below;