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1961 DIGILAW 319 (KER)

P. Ganesan v. Bhagavathi Amma

1961-09-22

M.S.MENON, T.K.JOSEPH

body1961
Judgment :- 1. This is an appeal by the Proprietor, Perumal Lorries, Vadasseri, from the order of the Commissioner for Workmen's Compensation, Trivandrum, in W.C. Case No. 182 of 1955. The order directed the appellant to deposit a sum of Rs. 2,125 for payment to the respondents, the dependants of one Arumugham Pillai. 2. The Commissioner found that the accident in which Arumugham Pillai lost his life arose out of and in the course of his employment by the appellant. On the evidence on record that conclusion is correct and fully justified. 3. The only question that arises for consideration is whether the deceased was a workman as defined in S.2 (1) (n) of the Workmen's Compensation Act, 1923, read with clause (i) in schedule II to that Act. Clause (i), on the relevant date, read as follows: "Employed, otherwise than in a clerical capacity or on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity." It is common ground that Arumugham Pillai was not either the driver or the conductor of the lorry; but a checker entrusted with the duty of ensuring that the proper freight for the goods transported was collected and credited to the appellant. 4. According to the appellant such an employment is not an employment "in connection with the operation" of the lorry as found by the Commissioner for Workmen's Compensation. The Commissioner said: "It is evident that the deceased met with his end while he was employed in for checking the lorry belonging to the opposite party under latter's instructions. Then the question to be decided is whether a checker of a lorry is a workman as defined in S.2 (1) (n) of the Workmen's Compensation Act. To me it appears that the terms of schedule II (i) are sufficiently wide to cover the case of a checker of a lorry. It is to be noted that the expression used in schedule II (i) is 'employed in connection with' and that expression may be contrasted with the expression used in some of the other provisions in he schedule 'employed in'. The expression'in connection with' is certainly wider than the expression 'employed in'. A checker of a lorry though not employed in operating it, is employed in connection with the operation of the lorry. 5. The expression'in connection with' is certainly wider than the expression 'employed in'. A checker of a lorry though not employed in operating it, is employed in connection with the operation of the lorry. 5. In Nanda Kumar Singh v. Pramatha Nath Chatterjee (1937-38) 42 Cal. W.N. 123 the case of a conductor - Costello, A.C.J., said: "Tersely stated, the proposition is this: Was the deceased man employed in connection with the operation of a mechanically propelled vehicle? It has been argued on behalf of the appellant, that is to say, the employer that the learned judge was wrong in coming to the conclusion that the terms of schedule II (i) are sufficiently wide to cover the case of a conductor of a motor omnibus." "Mr. Sanyal asked us to say that the application of schedule II(i) ought to be limited and construed as including only persons who are actually employed in connection with the working of the mechanical parts of the vehicle or the maintenance of the mechanical parts. We find ourselves unable to accept that contention." This decision was followed in Pollachi Transports v. Arumugham Gounden AIR. 1938 Mad. 485. 6. The words "otherwise than in a clerical capacity" in clause (i), we think, are significant. The introduction of those words into the clause would indicate that but for such a specific exclusion the Legislature thought that the clause will also take in employment in a clerical capacity. In Nanda Kumar Sing v. Pramatha Nath Chatterjee (1937-38) 42 Cal. W.N. 123 Lethbridge, J., who agreed with Costello, A.C.J., dealt with the impact of those words as follows: "I agree, and would only like to add that the construction of Cl. (i) of schedule II which has been adopted by the learned Commissioner is reinforced by the words 'otherwise than in a clerical capacity'. If the narrower construction is adopted, namely that that clause includes only those employed in operating the mechanical part of a vehicle, than the words 'otherwise than in a clerical capacity' would be redundant, but the clause should not be construed in such a way as to make any words redundant. 7. If the narrower construction is adopted, namely that that clause includes only those employed in operating the mechanical part of a vehicle, than the words 'otherwise than in a clerical capacity' would be redundant, but the clause should not be construed in such a way as to make any words redundant. 7. Both on the ground that the expression "in connection with" is an expression of wide content embracing activities which subserve or are ancillary to "operation or maintenance" and the specific exclusion embodied in the words "otherwise than in a clerical capacity" we must hold that the Commissioner for Workmen's Compensation was correct in his conclusion and that this appeal should be dismissed. Our attention was drawn to various cases, for example, to (1950-51) 55 Calcutta Weekly Notes 496 wherein it was held that a building inspector was not a workman within the meaning of the Act. The decision in one case, in matters like this, is seldom of any use for the decision of another, and we do not think any useful purpose will be served by discussing those decisions in this judgment. 8. The appeal fails and is hereby dismissed with costs. Dismissed.