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2001 DIGILAW 345 (KER)

KUTTAPPAN v. C. K. KESHAVAN

2001-07-03

R.RAJENDRA BABU, V.P.MOHAN KUMAR

body2001
JUDGMENT : V.P. Mohan Kumar, J.—This appeal is preferred against the order passed by the Workmen's Compensation Commissioner in W.C.C. No. 96/92. The applicant claims to be a headload worker of the first contesting respondent at the time of accident on October 18, 1991. The applicant carried a jar of acid on his head for the purpose of preparing rubber sheets as per the direction of the first respondent and was proceeding to the house of the first respondent. While so, the bottom of the jar gave way and the acid flowed on his head, shoulders and all over the body. He suffered burnt injury. The jar was broken, according to the worker, because the acid was kept in a very low quality jar owned by the first respondent. Immediately after the accident, the applicant was taken to various hospitals and treated. At the time of accident, he alleged that he was paid a monthly wages of Rs. 1,200/-. He claimed compensation accordingly. 2. The respondents appeared before the Court and filed written statements denying the contentions. They alleged that the jar containing acid was being taken by the first respondent for his own use for mixing in the rubber latex in a jeep along with other domestic goods. He alleged that the applicant offered the first respondent that he will carry the jar to his premises and as such he was not an employee of the first respondent. As he acted negligently the jar broke down resulting in the accident. He also pointed out that if the jar was taken carefully, it would not have broken. Thus, he totally denied the contentions. 3. The Commissioner framed necessary issues, one such issue being whether the applicant was a workman within the meaning of Workmen's Compensation Act (hereinafter referred to as 'the Act'). This issue was tried as a primary issue and held that the applicant is not a workman working under the respondents. On the basis of this finding, his application was rejected. Other issues were not gone into by the Court. Hence, the workman has come up in appeal challenging the above order. 4. The only question urged by the appellant is the correctness of the finding entered as to whether the applicant is a workman within the meaning of the Act. The Commissioner proceeded on the basis that the applicant is a casual employee. Hence, the workman has come up in appeal challenging the above order. 4. The only question urged by the appellant is the correctness of the finding entered as to whether the applicant is a workman within the meaning of the Act. The Commissioner proceeded on the basis that the applicant is a casual employee. This interpretation u/s 2(n) of the Act is incorrect. Section 2(n) of the Act reads: "'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is..........." Therefore, in order that this exclusion clause should apply, the workman should satisfy all the ingredients of the section, that is to say that he was not employed as a casual worker and otherwise than for the purpose of employer's trade or business. It both the ingredients do not exist, the applicant would be a workman, once it is shown that he was employed. In this case, admittedly, the workman was carrying jar containing acid for the business of the employer at his direction and as such even if he is treated, for argument sake a casual worker, one of the ingredients alone is satisfied. As such he will not be outside the meaning of workman. He has be treated as workman for the purpose of Act. In view of this, the primary finding entered by the Workmen's Compensation Commissioner is not sustainable. We hold that the appeal is maintainable. As to the claim of compensation in the proportion of disability, the nature of injury, etc. are all matters to be gone into and decided by the Workmen's Compensation Commissioner the matter has to be remitted to him for fresh disposal in accordance with law. 5. Hence, we set aside the order passed by the Workmen's Compensation Commissioner and hold that the application is maintainable. We direct the Workmen's Compensation Commissioner to take note of the fact that the incident took place in 1991 and hence the applications filed by the appellant be disposed of afresh treating the applicant as a workman within the meaning of Section 2(n) of the Act as expeditiously as possible. The final decision shall be taken by the Commissioner within a period of six months from the date of receipt of a copy of this judgment. 6. The appeal is disposed of as above.