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Ellerman's City and Hall Lines Vs. Asis Thomas (28.07.1937 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai
Decided On
Case NumberFirst Appeal No. 119 of 1936
Judge
Reported inAIR1938Bom110; (1937)39BOMLR1230; 173Ind.Cas.545
AppellantEllerman's City and Hall Lines
RespondentAsis Thomas
DispositionAppeal dismissed
Excerpt:
workmen's compensation act (viii of 1923), section 2(1)(n), schedule ii, clause (viii)-workman-engagement by day to day-carpenter engaged to repair cases unloaded in the port, whether workman.;the term 'workman,' as defined in section 2(1)(n) of the workmen's compensation act, 1923, includes a workman employed by the day or by the week or by the year. the expression 'monthly wages not exceeding three hundred rupees,' in the clause means wages which do not exceed on an average rs. 30o a month.;a person employed as a carpenter to repair cases containing goods which are unloaded, in the port, is a person employed in the 'handling' of goods and is a workman under schedule ii, clause (viii), of the act. - .....the chances of an accident are great or small. as found on the facts an accident in this case occurred to the carpenter, and if he falls within the definition of a ' workman,' he is entitled to compensation. in my opinilon he was employed in handling goods within the limits of the port, and that being so, the finding of the learned commissioner was right. the appeal, therefore, must be dismissed with costs.sen, j.5. i agree.
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal against a decision of the Commissioner for Workmen's Compensation making an award of Rs. 1,200 in favour of the representative of the workman. The facts found are that the alleged workman was employed by Killick Nixon & Co. as a carpenter, and his work was to attend at the sheds in the Alexandra Dock when cargoes were being unloaded from steamers and to repair broken boxes. The Commissioner has found that the deceased man was employed by Killick Nixon, and not by a sub-contractor, and that he met with death by drowning, and that the accident arose out of and in the course of his employment. Those are questions of fact which are not under appeal. But two points of law are taken in appeal. First of all it is said that the deceased man was not employed at monthly wages. He was in fact paid Rs. 1-8-0 a day, and it is not suggested that he was employed by the month. Now the definition of 'workman' in Section 2(1), Clause (n), of the Workmen's Compensation Act (VIII of 1923), is this :

'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-. (ii) employed on monthly wages not exceeding three hundred rupees, in any such capacity as is specified in Schedule II.

2. So that a workman appears to include a person whose employment is of a casual nature, and is also in connection with the employer's trade or business, though obviously such a person is not likely to be employed by the month. Then Section 5 describes how wages are to be calculated. It is said that this workman was not employed on monthly wages but in my opinion the reference to employment on monthly wages in Section 2(1), Sub-clause (n), means employment at wages which do not exceed an average of Rs. 300 a month. It seems to me quite impossible, reading this Act as a whole, to say that it was limited to workmen who are employed by the month, so that it would not include workmen employed by the day or by the week or by the year. If that were the meaning of the Act, every employer could get out of it by employing his workmen otherwise than by the month. I feel no doubt whatever that the meaning of the expression 'monthly wages not exceeding three hundred rupees' means wages which do not exceed on an average Rs. 300 a month. That constmction is supported by Section 5, although, no doubt, it would be possible, as Mr. O'Gorman says, to give effect to that section by holding that it is limited to cases which the accident occurs during the first month.

3. Then the second point taken is that this workman does not come within Schedule II of the Act. The clause under which it is suggested that he comes is Clause (vii) of the Second Schedule as amended, which reads as follows :-

The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is-employed for the purpose of loading, unloading, fuelling, constructing, repairing, demolishing, cleaning or painting any ship of which he is not the master or a member of the crew1, or in the handling or transport within the limits of any port subject to the Indian Ports Act, J908, of goods which have been discharged from or are to be loaded into any vessel.

4. Now the question is whether a man employed to mend boxes which have been unloaded from a ship within the limits of a port subject to the Indian Ports Act can be said to be employed in the handling or transport of goods. The words ' handling' and 'transport' being connected in the schedule by the disjunctive' or' must, I think, be held to have distinct meanings. If the word 'handling' be limited to handling in the process of transport, as Mr. O'Gorman contends that it should be, then one gives no meaning at all to the word ' handling', because ' transport' would cover handling in the process of transport. Therefore one must give to the word some wider meaning than handling in the process of transport. The word in its natural and literal meaning denotes physical contact with goods by means of the hands, that is, the employment must require the workman to use his hands upon the goods, and certainly a carpenter repairing boxes in which goods are packed is using his hands in connection with the goods. I am not prepared to accept the view indicated by the learned Commissioner that handling may be used in the schedule in the figurative sense in which it is sometimes employed in such an expression as handling a business. In my view a clerk who prepares a bill of lading relating to goods cannot be said to be handling the goods within the meaning of Schedule II. But a man who is employed to repair cases containing goods or to unload and re-pack goods seems to me to be employed in the handling of goods. Mr. O'Gorman has argued that the section is really intended to protect coolies whose employment in loading and unloading ships involves a certain amount of risk. I have no doubt that the risk of accident to a cooly engaged in loading or unloading a ship is considerably greater than the risk of accident to a carpenter who is employed in the godown to repair a box. But we are not concerned with whether the chances of an accident are great or small. As found on the facts an accident in this case occurred to the carpenter, and if he falls within the definition of a ' workman,' he is entitled to compensation. In my opinilon he was employed in handling goods within the limits of the port, and that being so, the finding of the learned Commissioner was right. The appeal, therefore, must be dismissed with costs.

Sen, J.

5. I agree.


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