LAWS(J&K)-1996-3-1

NEW INDIA ASSURANCE COMPANY Vs. SANTOSH KUMARI

Decided On March 15, 1996
NEW INDIA ASSURANCE COMPANY Appellant
V/S
SANTOSH KUMARI Respondents

JUDGEMENT

(1.) RESPONDENT No. 1's husband died in an accident of fire of vehicle No. JK 02-4123 which occurred during the intervening night of May 18/19, 1991. She moved an application before the Assistant Commissioner, Rajouri (Commissioner under the Workmen's Compensation Act) on August 27, 1992. The appellant herein and Respondent No. 2 were the respondents therein. According to the Respondent No. 1 claimant, her husband was in the employment of Respondent No. 2 and the vehicle stood insured with the appellant. The facts as revealed by the award state that the husband of Respondent No. 1 was the driver of the above mentioned vehicle who had gone with the owner of the vehicle to Shahdra Sharief. He was asked to sleep in the vehicle which caught fire during the night and the husband of the Respondent No. 1 claimant was charred to death.

(2.) THE Commissioner invited objections from the respondents and both the respondents filed their objections. The owner of the vehicle admitted that the deceased husband of the Respondent No. 1 -claimant was in his employment and he was being paid Rs. 50/- per day. The Insurance Company-appellants herein in their objections admitted that the vehicle in question stood insured with them. However, they took a plea that the deceased had not a valid driving licence on the relevant date. They also took the plea that the driver had been engaged only for a period of three days and was not being paid a regular monthly salary of Rs. 1500/ -. They also submitted that the deceased driver was not a workman as defined in the Workmen's Compensation Act. The appellant did not lead any evidence before the Commissioner. The Commissioner passed an award in favour of the claimant, which has been challenged by way of this appeal. The only ground taken in the appeal is that on the date the accident took place, the deceased driver was already a Government employee, and as such, even if he was driving the vehicle which caught fire, he could not be deemed to be a workman within the meaning of the Act. The appellants have taken a plea that this fact was not known to them previously and therefore, was being agitated for the first time in the appeal. From a reading of the memo of appeal it becomes clear that this fact had been disclosed by Respondent No. 1 when she was examined by the Commissioner on April 19, 1993. In her statement in cross-examination, she had stated that her husband was working in the Public Works Department, and he had gone to Rajouri after taking leave. She has further stated that he was a daily wager. Although this fact was known to the appellant herein admittedly from April 19, 1993 that the deceased was working with Public Works Department, yet they did not produce any evidence to show as to what was the nature of employment of the deceased with the Public Works Department. The wife of the deceased driver had categorically stated that he was working on daily wage basis. It is common knowledge that a daily wager is being paid only for those days on which he works. In the absence of any evidence having been produced by the appellant, this Court has to believe the wife of the deceased driver that her husband was working only as a daily wager with the Public Works Department. A daily wager as such is not a Government employee.

(3.) MY attention has been drawn by learned counsel for the appellant to the provisions of Jammu and Kashmir Government Employees Conduct Rules, 1971. Rule 10 thereof creates a bar for a Government employee to engage himself in trade or employment other than the Government employment. But I do not think that a Daily Wager is a Government employee within the meaning of Rule 2 (b) of the said Rules, where the Government employee is defined to mean any person appointed to any civil service or post in connection with the affair of the State. A daily wager is engaged for performing a specific job and is being paid for the day he is engaged. Therefore, even if it is held that the deceased driver was in the employment of Public Works Department as a daily wager, even then that will not deprive him of the benefits under Workmen's Compensation Act, provided it is shown that he was a workman within the meaning of the Act. Workman has been defined under Section 2 (s) of the Act, as under: