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2008 DIGILAW 223 (GUJ)

Koli Manga Ghugha v. Madanbhai Mohanbhai Patel

2008-05-08

K.S.JHAVERI

body2008
JUDGMENT : K.S. Jhaveri, J. By way of present appeal, the appellant has challenged the judgment and award dated 28.01.1985 passed by leaned Commissioner, Under Workmen's Compensation Act, Bhavnagar, in Workmen's Compensation Case No. 99 of 1983, whereby the said application was dismissed. 2. The facts in brief, as emerging from the record, are as under. 2.1 The appellant, original applicant had filed Workmen's Compensation Case No. 99 of 1983, before the Court of the Commissioner, under Workmen's Compensation Act, at Bhavnagar, praying for recovery of Rs. 9,000/- under Sections 3 and 4 of the Workmen's Compensation Act and prayed for the dismissal of the said case with costs. 2.2 The Competent Authority, after considering the entire evidence on record, dismissed the said case of the appellant - original applicant vide the impugned judgment and award. Hence, the present appeal. 3. Heard learned counsels appearing for respective parties. 4. It is the case of the appellant that competent authority has erred in coming to the conclusion that the appellant was not an employee within the meaning of Section 2(n) of the Act when it was admitted by the owner of the truck, that the appellant has been employee as a workman and was doing the work of stacking ground nut bags and at that time he has sustained the injury. It is the case of the appellant that the competent authority has not taken into consideration the fact that it was admitted by the respondent that he was the owner of the truck bearing No. GTX 4995. It was also admitted by the respondent No. 1 that accident took place on 30.05.1983. That it was also admitted that the present appellant was employed by him and during the course of discharging his duties as a workman he has sustained injuries. These facts were sufficient to award the compensation to the appellant. It is the case of the appellant that the competent authority has failed and neglected to appreciate the evidence oral as well as documentary before deciding the case. It is the case of the appellant that in view of the aforesaid peculiar facts and circumstances of the case, the judgment and award passed by the Competent Authority requires to be quashed and set aside in the interest of justice. 5. The competent authority has discussed every aspects and given reasons in detail in para-7 which is reproduced hereunder. It is the case of the appellant that in view of the aforesaid peculiar facts and circumstances of the case, the judgment and award passed by the Competent Authority requires to be quashed and set aside in the interest of justice. 5. The competent authority has discussed every aspects and given reasons in detail in para-7 which is reproduced hereunder. "The material question is whether the applicant comes within the definition of word "workman" defined in Section 2(n) of the Act. The applicant himself has said in his chief-examination that on the day of the incident he was working as a labourer on the truck of opponent No. 1. He has not said since how long he had been working with the opponent No. 1. Therefore, it is very clear that the accident took place on the very day on which the applicant was employed as a labourer for the first time. Even opponent No. 1 has said on oath that applicant was employed as a casual labourer. Even opponent No. 2 has said on oath that he has been working as driver on this truck for 10 to 20 years, and that opponent No. 1 had instructed him to hire a labourer whenever necessary. He further said that he engaged applicant on a casual basis for labour work on 30.5.83. That version of opponent No. 2 has stood the test of cross-examination. Therefore, it is clear that the employment of applicant was casual. Section 2(n) of the Act defines "workman" and means any person (other than person who is employed as casual labourer etc.). Therefore, it is very necessary that the employment of a person must not be of a casual nature. In this case the employment of the applicant was for the first time and it turned out to be last day. Therefore, the applicant cannot be called a workman within the meaning of the Act. Therefore, even assuming that the injury was caused to the applicant in an accident arising out of and in the course of his employment by either opponent Nos.1 and 2 point No. 1 has got to be held in the negative. I, therefore, hold it in the negative." 6. Therefore, even assuming that the injury was caused to the applicant in an accident arising out of and in the course of his employment by either opponent Nos.1 and 2 point No. 1 has got to be held in the negative. I, therefore, hold it in the negative." 6. In view of the aforesaid facts and circumstances of the case, it is noticed that the competent authority has rightly come to the conclusion and discussed every aspects in detail in the said paragraph of the impugned judgment and award. Considering the facts of the case, I am of the considered opinion that the competent authority was completely justified in passing the impugned judgment and award. I am, therefore, in complete agreement with the reasoning's given by the competent authority and the findings arrived at by the competent authority in the impugned judgment and award and I am not inclined to issue notice to the appellant in the present case as no sufficient cause is made out and hence, no interference is warranted in this appeal. This appeal is, therefore, deserved to be dismissed. 7. For the foregoing reasons, the present appeal stands dismissed. No order as to costs. Appeals stand dismissed.