SARUP SINGH SHER SINGH RAMGARHIA Vs. MUKUND LAL

JUDGEMENT

(1.) This appeal has been preferred by Sarup Singh under S. 30 of the Workmen's Compensation Act against the order of Shri Des Raj, Commissioner under the said Act, disallowing the claim of the present appellant. It appears that Sarup Singh appellant was employed by Shri Mukand Lal on 12-8-1954 at Rs. 4/- per day to cut wood and to repair canal embankment by wooden support (killas and other fences) between Burji No. 148-49 on Uper Bari Doab Canal. In the course of this employment he climbed a shisham tree and fell down, as a result of which he received injury on his right arm of the elbow which was fractured. On 4-6-1955, he applied to the court of the Senior Subordinate Judge for payment of Rs. 3,500/- as compensation. This application was, however, put in on a form meant for claims under the Payment of Wages Act of 1936. Notice of this application was issued by the Senior Subordinate Judge who acted as Commissioner under the Payment of Wages Act for 9-7-1955. On that date Sarup Singh realising that the petition had been erroneously filed on a printed form under the Payment of Wages Act, filed an application for amending his original petition stating that by oversight this mistake had been committed and that the defect being of purely a formal nature, he may been permitted to amend the petition. Of this application for amendment, notice was given to the respondent and on 21-10-1955 an amended petition was actually put in. the respondent, in his written statement, contested the petition on various grounds denying even the employment of the appellant at Rs. 4/-per day. It was pleaded that the appellant was a casual labourer and knowledge of actual injury was also denied. It was further pleaded that Mohinder Singh & others had been employed as contractors to close the breach in the canal and therefore it was the duty of the contractor to employ any person he liked. Preliminary objections on the ground of limitation and absence of notice under S. 80 of the Code of Civil Procedure as also of non-liability of the respondent were also raised.

(2.) On the pleadings the following issues were fixed for trial:

(3.) On the first issue, the learned Commissioner found in favour of the maintainability of the application. On issue No. 2, it was found that the appellant had not been employed by the respondent. Under issue No. 3 also, the decision was in the negative which means that the appellant had not been employed by the respondent in his personal capacity. Under issue No. 4, however, it was held that the respondent came within the definition of the word 'employer' and was, therefore, liable to compensate the appellant though it would perhaps ultimately be the State which may have to provide him (the respondent) with the requisite funds. Under issue No. 5, the statement of the appellant was held to be un-rebutted and the learned Commissioner found that the injury was suffered by the applicant during the course of his employment. Under issue No. 6, the amount of compensation was held to be 70 per cent of the permanent disablement as is laid down by entry No. 1 in Schedule I of the Workmen's Compensation Act. Under issue No. 8 the learned Commissioner held the application to be barred by limitation as, according to him, the amended petition was filed on 21-10-1955 after the expiry of one year from the date of accident which was 12-8-1954. Under issue No. 9, notice under S. 80 was held not to be necessary as conceded by the learned counsel for the respondent. The respondent's counsel had, however, also raised a point that notice under S. 10 of the Workmen's Compensation Act, was necessary but this objection having not been raised earlier, it was considered to have been waived. Under issue No. 10 also there being un-rebutted testimony of the appellant that he had been employed at Rs. 4/- per day which would work out to Rs. 120/-per month the amount, to which the appellant was entitled, if his suit had not been held to be bared by time was determined at Rupees 3,430/-. As a result of the above findings, the learned Commissioner disallowed, the appellant's petition who has, as stated earlier, appealed here under S. 30 of the Workmen's Compensation Act.