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2005 DIGILAW 30 (KAR)

BALU RAMA PATIL v. RAMESH SHANKAR RAO

2005-01-12

A.M.FAROOQ, B.S.PATIL

body2005
B. S. PATIL, J. ( 1 ) THOUGH the matter is listed for admission, with the consent of both the parties, the same is taken up for final hearing. ( 2 ) THIS appeal is filed under Section 30 of the Workmen's Compensation Act, 1923. The claim application filed by the applicant was rejected by the Workmen's Compensation commissioner holding that the injured driver of the car is not entitled for compensation as he does not fall within the definition of the term 'workman' as defined under Section 2 (1) (n) of the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'act' ). ( 3 ) BRIEF facts which are essential for the disposal of the case are as under: that the appellant who was working as a driver of the Ambassador Car bearing registration No. GA-01-A-5762, belonging to respondent 1 met with an accident on June 29, 1999. It is contended that while he was driving the said vehicle, it dashed against a truck bearing Registration No. KA 22-A-28. He further contended that the accident occurred while he was returning from Goa to Belgaum near Macchie Bus Stand. Alleging that he sustained compound fracture and other injuries, the claimant preferred a claim petition before the Workmen's Compensation commissioner at Belgaum. ( 4 ) THE Insurance Company resisted the claim petition. Although it was admitted by the insurance Company that the vehicle was covered under a policy of insurance, the workmen's Compensation Commissioner dismissed the claim petition holding that the driver of the car did not fall within the definition of the term 'workman' as defined under Section 2 (1) (n) of the Act. According to the Commissioner, the Ambassador Car was not used as a commercial vehicle at the time when the accident took place nor was it used for the business purpose. Therefore as per the impugned award the driver engaged in such a vehicle would not fall within the ambit of the definition of the term 'workman' as defined under Section 2 (1) (n) of the Act. ( 5 ) WE have heard the learned counsels on both sides. We have carefully perused the pleadings, the evidence and the impugned award. Therefore as per the impugned award the driver engaged in such a vehicle would not fall within the ambit of the definition of the term 'workman' as defined under Section 2 (1) (n) of the Act. ( 5 ) WE have heard the learned counsels on both sides. We have carefully perused the pleadings, the evidence and the impugned award. The substantial question of law that arises for our consideration in this appeal is as to: 'whether the appellant/claimant falls within the definition of 'workman' as defined under Section 2 (l) (n) of the Workmen's compensation Act, 1923?'. ( 6 ) SECTION 2 (1) (n) defines 'workman' to mean any person who is employed in any capacity as is specified in Schedule II 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. It is clear from the definition, the substance of which is extracted above, that a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business gets excluded from the purview of the definition. The word 'and' occurring between the expression 'whose employment is of a casual nature' and 'who is employed otherwise than for the purposes of the employer's trade or business' has to be read conjunctively. Thus, in order to exclude a person from the category of a workman entitled to compensation under the Act, it has to be shown that he is a casual employee and further that he is not engaged in the trade or business of the employer. In other words, if a person has to be hoisted out of the contours of the definition the casual nature of his engagement must couple with the succeeding postulate in the definition such that his employment should not be for the trade or business of the employer. This being the legal position, the Commissioner appears to have proceeded on the misconception of the legal position. ( 7 ) IT is seen from the facts of this case that the driver engaged was a paid driver not employed as casual worker but on regular basis. Both the conditions mentioned in the definition are to be cumulatively satisfied if the exclusion contemplated is to be made applicable. ( 7 ) IT is seen from the facts of this case that the driver engaged was a paid driver not employed as casual worker but on regular basis. Both the conditions mentioned in the definition are to be cumulatively satisfied if the exclusion contemplated is to be made applicable. It is to be stated here that in the instant case, the Workmen's Compensation commissioner has failed to consider this important aspect nor has he referred to schedule II to the Act. ( 8 ) WE are therefore of the considered view that the order impugned is unsustainable as it proceeds on a wrong construction of the provision. The Commissioner has not dealt, with the other question pertaining to the quantum of compensation payable to the claimant. Therefore, the matter requires to be remitted back for reconsideration or this aspect of the matter and to determine the quantum of compensation to which the workman is entitled. '- hence, we pass the following order: i. The appeal is allowed. ii. The impugned award passed by the workmen's Compensation Commissioner, belgaum in No. WCA/sr. 117 of 1999, dated June 22, 2000 is set aside. in. It is held that the claimant-injured driver in the instant case is a 'workman' as defined under Section 2 (1) (n) of the Workmen's compensation Act, 1923. iv. The matter is remitted for consideration with regard to the quantum of compensation to which the injured workman/appellant herein is entitled to. The Commissioner shall dispose of the matter within eight weeks from the date of receipt of a copy of this order, ( 9 ) THE records of the Court below shall be remitted back to the Commissioner for workmen's Compensation, Belgaum forthwith. No costs. --- *** --- .