SUBITA AND ORS. Vs. RAM SINGH AND ORS.

JUDGEMENT

(1.) THIS Civil Misc. Appeal has been filed under Section 30 of the Employee's Compensation Act, 1923 (hereinafter 'the Act of 1923') against the judgment/award dated 24.01.2012, passed by the Employee's Compensation Commissioner, Sikar (hereinafter 'the Commissioner') whereby the applicants appellants' (hereinafter 'the applicants') claim for compensation under the Act of 1923 was dismissed as not being maintainable.

(2.) THE facts of the case are that the applicants being the wife and children of the deceased Mahendra Choudhary filed a claim under Section 22 of the Act of 1923 stating that he was employed with the respondent No. 2 - -Mukesh Kumar and worked at his shop doing business in the name and style Ashok Kumar, Mukesh Kumar in Gangori Bazar, Jaipur. It was averred that on 05.04.2007 Mahendra Choudhary opened the shop in issue and was thereafter sitting outside on the scooter. Opposite the shop, the respondent No. 2's dilapidated house was being demolished. In the course of demolition, one of the overhangs broke loose and fell on Mahendra Choudhary's head wherefrom he suffered serious head injury and died therefrom. It was stated that at the time of his death, the deceased Mahendra Choudhary was 32 years of age and drawing a salary of Rs. 6,000/ - p.m. Consequently the applicants sought compensation of Rs. 4,07,700/ - along with interest and penalty. On the service of the application, reply of denial was filed by the respondents. Thereon the learned Commissioner framed four issues which loosely translated are as under:

(3.) AS issue No. 4 with regard to the maintainability of the claim at the instance of the applicants was a fundamental issue, the Commissioner proceeded to first address it. He found that from the evidence on record it transpired that Mahendra Choudhary at the time of accident of 05.04.2007 was working in the shop in which admittedly even as per the case of the claimants themselves at best only 5 to 7 persons were employed. The Commissioner in the circumstance referring to the extant definition of 'workman' in Section 2(n) of the Act of 1923 as obtaining on the date of the accident i.e. 05.04.2007 concluded that the deceased Mahendra Choudhary was not a workman and a claim under the Act of 1923 qua his death was not maintainable. The claim therefore was dismissed. Hence this appeal.