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2014 DIGILAW 698 (DEL)

Hari OM Forwarding v. Radhey Shyam

2014-03-03

VALMIKI J.MEHTA

body2014
Judgment : Valmiki J. Mehta, J (Oral) CM No.4035/2014 CM is allowed by condoning the delay. FAO No.62/2014 1. The challenge by means of this first appeal filed under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) is to the impugned order of the Commissioner, Employee’s Compensation dated 17.10.2012 which has awarded compensation to the respondent/employee. 2. The facts of the case are that the respondent was employed as a loading/unloading worker by the appellant. On 5.11.2009 while loading fruits on truck bearing No.JH-01-AA/0359 the right hand of the respondent got trapped in the dala/flap of the truck resulting in three fingers of the right hand being chopped/broken off. Respondent was admitted to the Jagjivan Ram hospital by the Munshi of the appellant and thereafter he was shifted to the Trauma Centre of the hospital for treatment. Petitioner was 35 years of age at the time of accident. Appellant in the written statement admitted the employer- employee relationship but took up a stand that the relationship of employer and employee is not there because respondent was only a casual labour and not working with the appellant on salary basis. 3. The relevant paras of the written statement taking up the case of non-payment of salary and hence no relationship of employer and employee are paras 1 to 8 and which read as under:- “1. That the above said workman was not with the employment of the management. The workman was a casual loader who was loading and unloading the goods on the carriers on several places with the help of his associates @ Rs.600 per truck. 2. That the workman never worked with any management on the salary basis. 3. That the management works on the commission base who arrange the meetings between wholesale fruit seller and buyer/parties, and help for dealings between the parties. After successful dealings between the parties, the management get the commission from the parties. 4. That the process of business deal the whole responsibility is raised upon buyer and the said buyer arranges the goods carrier, loader and unloader. 5. That at the time of accident, the said workman and three other loader were send with the goods/apple had to send to Bihar Sharif (Bihar). 6. 4. That the process of business deal the whole responsibility is raised upon buyer and the said buyer arranges the goods carrier, loader and unloader. 5. That at the time of accident, the said workman and three other loader were send with the goods/apple had to send to Bihar Sharif (Bihar). 6. That the management did not know the workman prior this accident, he came first time for loading the goods/apple with the said truck No.JH-01AA/0359, send by eight other buyers of the fruits. It is pertinent to mention here that on that day, there were eight wholesale fruits buyer, who were sending their wholesale fruits collectively by the said truck. 7. That there is no relation of employer and employee between the management and workman. 8. That the despite of not being the workman/employee of the management, just after the accident, the management took the hospital to the injured workman and afforded all the expenses of the said workman. At the time of discharge from the hospital, the management spent Rs.4,000/- in the hospital till discharge of the workman. That after discharge from the hospital the workman demanded Rs.5,000/- from the management for got to his native village at Azamgarh, U.P., which was also paid to workman by the management.” 4. In view of the above, in fact there was no need even to lead evidence on the issue framed of existence of relationship of employer and employee as now even a casual worker not getting paid monthly salary is included in the sweep of the Act. However, respondent led evidence and at the stage of evidence of the appellant herein there is a controversy as to whether the appellant (who is respondent before the Commissioner) wanted to lead evidence or conceded to not leading of evidence and case being argued straight away. Irrespective of controversy as to the language of the order dated 26.9.2012, the fact of the matter is that the relationship of the employer and employee in the present case has been established because the respondent was employed as a daily wager for loading and unloading fruits from the truck. Irrespective of controversy as to the language of the order dated 26.9.2012, the fact of the matter is that the relationship of the employer and employee in the present case has been established because the respondent was employed as a daily wager for loading and unloading fruits from the truck. I may note that originally the definition of a workman in the Act excluded a person who was a casual worker/labour, however, the Act was amended by Act 46 of 2000 (which became operative from 8.12.2000) whereby even a casual worker was included within the scope of operation of the Act by the Legislature deleting from the definition of workman in Section 2(n) of the Act those words which excluded benefit of the Act to a casual worker. 5. No other issue except the issue of relationship of employer and employee was argued before this Court. 6. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs. CM No.4034/2014 is also dismissed.