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Alimohamed Jumardikhan Vs. Shankar Tukaram Pote - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai
Decided On
Case NumberFirst Appeal No. 4 of 1944
Judge
Reported inAIR1946Bom169; (1945)47BOMLR857
AppellantAlimohamed Jumardikhan
RespondentShankar Tukaram Pote
DispositionAppeal dismissed
Excerpt:
.....10, 2(1)(n) and 5(b) - awarding of compensation-appeal-question of law-'notice of the accident,'-'accident'-'employed for the purpose of '-interpretation-daily labourer-course of employment-calculation of wages.;under section 30 of the workmen's compensation act, 1923, the high court is not entitled to interfere with the findings of fact arrived at by the commissioner for workmen's compensation except on a substantial question of law, and that includes a finding of fact which is not based upon evidence.;the words 'notice of the accident' appearing in section 10 of the act do not mean 'notice of the details of the accident'. a wide and unnecessary extension to the word 'accident' which may defeat the claim to compensation ought not to be lightly given. fenton v. owners of ship kelvin..........be fourteen annas, and he has multiplied that sum by thirty for the purpose of finding monthly wages. it is argued that this method of calculation takes no account of sundays, on which the employee would not be earning money, but also takes no account of bank holidays or days of absence or sickness; and it is suggested that we should send the case back for finding the average amount spent in every month by an employer in the locality having regard to these possibilities of deductions. but we note that section 5(c) (though not applying to the particular case with which we have to deal) calculates monthly wages by multiplying the total wages earned by thirty and dividing by the number of days of continuous employment; and this method certainly does not take into account any days of.....
Judgment:

Macklin, J.

1. This is an appeal against a decision of the Additional Commissioner for Workmen's Compensation. He has awarded Rs. 810 on account of an accident caused to a daily labourer who was travelling in her employer's motor lorry for loading and unloading the lorry with bricks. The accident occurred on June 25, 1943, and death took place three days later ; but notice of the accident was not given by the representatives of the injured woman until July 22, and failure to give adequate notice is one of the grounds of this appeal by the employer.

2. This Court is not entitled to interfere with the findings of fact arrived at by the Commissioner for Workmen's Compensation except on a substantial question of law, and that would of course include a finding of fact which was not based upon evidence; and it has been argued in this appeal that the Commissioner was wrong in his finding that the injured woman was employed by the employer. There is however evidence in that respect, though it is not particularly good evidence. The evidence of the driver of the lorry is that she was engaged on the road by the employer's mukadam, who himself was in the lorry at the time; and though there is the evidence of another occupant of the lorry to the effect that the, employment was by the driver, and though the muster roll (as is not unnatural) does not contain any mention of this woman having been employed that day, there is undoubtedly evidence on which it was possible for the Commissioner to come to his finding, and it is therefore not open to us to interfere. We take it that she was in fact in the employ of her employer at the time of the accident.

3. The next point argued is that the claim cannot be sustained in view of the want of adequate notice. Section 10 of the Act prescribes that notice of the accident should be given as soon as practicable after the occurrence of the accident. But it also provides that failure to give proper notice will not bar a claim if the employer had knowledge of the accident from some other source at or about the time when it occurred. It is stated in the course of the judgment before us that the employer admitted the receipt of a telephone message from somebody unknown on the day of the accident. We have been unable to find any such admission in the evidence in the case or in any written purshis to that effect; but the notes of arguments are before us, and it is evident that the employer's learned Counsel admitted in the course of the arguments that his client had received a telephone message. That would undoubtedly put the employer on enquiry, and in our view that is all that is necessary to enable the employee to escape the consequences of failing to give notice. But I do not propose to go deeply into this matter. It is clear from the judgment that in the early stages of the case the question of want of notice was not pressed. In fact no issue was raised on the point, and that is why there is no evidence on the point. The matter was pressed only at the close of the evidence. We think that the learned Commissioner was justified in acting on the admission of counsel and finding that the employer had in fact notice from other sources.

4. It is argued that the words 'notice of the accident' appearing in Section 10 must mean 'notice of the details of the accident'. But we see no justification for reading into the section words which are not there; and (though this point does not seem to have been definitely decided) I may refer to the case of Fenton v. Owners of Ship Kelvin [1925] K.B. 473, and in particular to the remarks of Mr. Justice Atkin towards the end of the judgment, where approval is given to an earlier dictum that the question of notice ought not to be measured in very nice scales and it is said that a wide and unnecessary-extension to the word 'accident' which might defeat the claim to compensation ought not to be lightly given.

5. It is next argued that the deceased was not a workman within the meaning of the Act even on the facts found. 'Workman' is defined in Section 2(1)(n), and it includes a person who is employed on monthly wages not exceeding Rs. 300 in any such capacity as is specified in Schedule II. There is the authority of this High Court in Ellerman's City and Hall Lines v. 'Thomas : AIR1938Bom110 to show that monthly wages not exceeding Rs. 300 do not restrict the definition of workman to people who are in fact employed on monthly wages, thereby excluding people on daily wages. An addition was made to Schedule II by Government Notification No. 7685, dated March 1, 1038, so as to include persons employed for the purpose of loading 6r unloading any mechanically propelled vehicle or in the handling or transport of goods which have been loaded into any mechanically propelled vehicle. On the authority of a case decided by a bench of this High Court in Parsu v. Bombay Port Trust : (1929)31BOMLR1304 , it has been argued that the words 'employed for the purpose of' and the words 'employed in' mean exactly the same thing, so that an accident which occurred while the employee was on the way to work could not be the subject of a claim to compensation, it not having occurred while the employee was employed in the actual work. That case, however, could have been decided more appropriately on a different ground altogether, namely that the person who suffered the accident was at the time of the accident acting altogether outside the scope of his employment and not merely acting in something that was incidental to his employment but was not the actual employment In the present case it could hardly be accepted that the lorry, which as we know was being driven to a brick field for the purpose of picking up bricks, should be expected to wait at the brick field while the person injured walked; and we take it therefore that her travelling to the brick field Was within the scope of her employment. There is a later case of this High Court to which I have already referred, Ellerman's City and Hall Lines v. Thomas, in which a man was drowned after the work had come to an end and was yet held to be a workman within the meaning of the Act. We consider ourselves free to follow the later of these two decisions. In our view the injured woman was not only killed in the course of her employment but was also a workman within the meaning of the Act.

6. Lastly, it is argued that the calculation of wages is wrong. Compensation is based upon monthly wages, and this woman was employed only for a day. The learned Additional Commissioner has followed Section 5(b), which admittedly applies to the case; and on the basis of that section he has estimated the average wages of a workman employed on similar work in the same locality, basing his calculations upon the present employer's own muster rolls. He finds that the average daily wages would be fourteen annas, and he has multiplied that sum by thirty for the purpose of finding monthly wages. It is argued that this method of calculation takes no account of Sundays, on which the employee would not be earning money, but also takes no account of bank holidays or days of absence or sickness; and it is suggested that we should send the case back for finding the average amount spent in every month by an employer in the locality having regard to these possibilities of deductions. But we note that Section 5(c) (though not applying to the particular case with which we have to deal) calculates monthly wages by multiplying the total wages earned by thirty and dividing by the number of days of continuous employment; and this method certainly does not take into account any days of absence on account of holidays or sickness. There is no reason to suppose that the calculations of the learned Additional Commissioner are in any way wrong.

7. The result is that the appeal fails on all points and is dismissed with costs.


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