NADIRSHA HORMUSJI SIDHWA Vs. KRISHNABAI BALA

JUDGEMENT

(1.) This is an appeal from an award by the Commissioner for Workmen's Compensation, Bombay. The three contentions raised by the employer upon which the learned Commissioner had to adjudicate, are (1) that the employer the present appellant did not employ the deceased who was engaged by one Rama to whom the contract for painting the building had been given for a lump sum; (2) that the deceased Laxman Bala was not a workman because his employment was of a casual nature and he was employed otherwise than for the employer's trade or business; and (3) that he was not a workman according to the schedule because he was not engaged in the construction, repair or demolition of a building, painting not being repair within the meaning of the schedule.

(2.) On the first point the learned Commissioner held that it was the appellant, and not Rama, who employed the deceased workman. That seems to me to be a pure finding of fact with which we cannot deal in appeal.

(3.) Upon the second question, whether the employment was of a casual nature within the definition of Section 2, Sub-clause (ii), of the Act, the learned Commissioner held that it was not casual. He held that the work on which the deceased was engaged extended over a period of three months and was concerned with the painting and whitewashing of a large house on several floors containing thirty rooms, and he held that the fact that the workman was employed from day to day, and not for the whole job in the circumstances did not render the employment casual. We have been referred to the various decisions on the English Act in which the language is similar. I think that the rule adopted in England is this, that it is impossible to define what casual employment is. There are some cases in which the employment is obviously not casual, and other cases in which the employment is obviously casual. There are a number of debatable cases between those two extremes and the Courts have held that in those debatable cases the decision of the County Court Judge must prevail. In other words, the rule seems to me to come to this that where there is any evidence to support the finding of the County Court Judge, or in India the Commissioner, that the employment either is, or is not, casual, then the finding must be treated as a finding of fact, and is not subject to appeal. The present case is clearly within the debatable area, and the Commissioner having come to the conclusion that the employment is not casual, and there being evidence to support that finding, I think we are bound by it, and that it is not necessary to consider whether we should ourselves have taken the same view or not.