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Kasturbai Ratanchand Gandhi Vs. S.S. Badole - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberFrist Appeal No. 266 of 1969
Judge
Reported in(1974)76BOMLR79
AppellantKasturbai Ratanchand Gandhi
RespondentS.S. Badole
DispositionAppeal allowed
Excerpt:
.....compensation act (8 of 1923), section 2(1)(n); schedule ii item (i)--whether cleaner of motor truck workman under act.;the cleaner of a motor truck is a workman within the meaning of section 2(1)(n) read with schedule ii item (i) of the workmen's compensation act, 1923.;shanthamallappa v. chandappa. [1958] a.i.r. may. 116 nanda kumar v. pramatha nath (1937) 42 c.w.n. 123, and pollachi transport, ltd. v. arumuga [1938] mad. 636 referred to.;the question as to what compensation is to be given is essentially a question arising under lex fori. it is for the court granting compensation to determine as to what compensation is to be given. no party can have a vested right when such a power is vested in the adjudicating authorities. - - 7,000 is a grievance for which there is no..........the respondent was liable to pay the compensation of rs. 7,000 on the basis of the salary of the deceased ratanchand at rs. 125 per month. the application was made by the appellants to the court of the civil judge, senior division, osmanabad, functioning as the authority under the workmen's compensation act, on march 24, 1964.2. the application was resisted by the respondent, while admitting that the truck belonged to the respondent, he denied that he was driving the truck as alleged by the appellants. he contended that he did not know motor driving and that the respondent's brother was driving the truck. it was further alleged that while the truck was going from osmanabad to bhir, one motor truck belonging to yermala dairy was going from osmanabad, that the deceased ratanchand was.....
Judgment:

Vaidya, J.

1. The above First Appeal is filed under Section 30 of the Workmen's Compensation Act, 1923. The appellants are the widow and children of one Ratanchand Amienand Gandhi, in respect of whose death on April 15, 1962, they claimed compensation. It was alleged by them that Ratanchand was in the employment of the respondent. On April 15, 1962, the respondent, who owned Motor Truck No. 1203, was, according- to the appellants, driving it with goods loaded in it from Osmanabad to Bhir near Alni Naka within the jurisdiction of the Workman's Compensation Authority at Osmanabad. The truck met with an accident and Ratanchand died instantaneously. The head of Ratanchand was cut from his body. Ratanchand was an expert motor mechanic and was attending the motor truck along with the respondent as a part of his duty. It was also claimed by the appellants that the death was caused to Ratanchand by the accident arising out of and in the course of his employment and hence the respondent was liable to pay the compensation of Rs. 7,000 on the basis of the salary of the deceased Ratanchand at Rs. 125 per month. The application was made by the appellants to the Court of the Civil Judge, Senior Division, Osmanabad, functioning as the Authority under the Workmen's Compensation Act, on March 24, 1964.

2. The application was resisted by the respondent, while admitting that the truck belonged to the respondent, he denied that he was driving the truck as alleged by the appellants. He contended that he did not know motor driving and that the respondent's brother was driving the truck. It was further alleged that while the truck was going from Osmanabad to Bhir, one motor truck belonging to Yermala Dairy was going from Osmanabad, that the deceased Ratanchand was sitting on the back side, that he was not doing so in the course of his employment but he was going for his private work to Bhir, that he was sitting in the truck in violation of the promise given by him to the respondent's brother not to project any part of his body or lean outside the truck; that the deceased Ratanchand put his head outside the truck and the truck belonging to Yermala Dairy, which was coming from the opposite direction, dashed against his head. It was alleged by the respondent that the death was caused not as a result of or in the course of the employment with the respondent. It was also contended that the deceased Ratanchand was not a workman or an employee on April 15, 1962, as defined in the Workmen's Compensation Act. It was further alleged that the deceased Ratanchand was not drawing a salary of Rs. 125 per month, that before the accident he was casually employed for 13 days from March 17, 1962 to March 29, 1962 and thereafter he was discharged. The daily wages paid were Re. 1 per day till March 29, 1962 and the amount of Rs. 13 was paid to him in full discharge of liabilities to him. It was admitted that Ratanchand used to serve temporarily on the vehicles of others and was generally accepted as a cleaner, but the respondent submitted that the allegation made by the appellants that he was an expert motor mechanic was not correct.

3. In view of these contentions, the learned Civil Judge, Senior Division, framed six issues. He held that he had jurisdiction to try the application, that the appellants were the dependants and heirs of the deceased Ratanehand within the meaning of the Workmen's Compensation Act, that the deceased was at the time of the accident in the employment of the respondent and he met with the accident while working as an employee of the respondent. In spite of these findings, however, he dismissed the application on the ground that the deceased Ratanchand was merely a cleaner and hence he was not a workman, as defined in Section 2(1)(n) of the Workmen's Compensation Act, 1923. While doing so he recorded a finding that in the event of the appellants succeeding, the compensation payable to the appellants was Rs. 3,500 on the basis of the salary of the deceased at Rs. 105 per month. In para. 8 of the judgment, the learned Judge appears to have made a mistake in saying that 'there is no evidence to show that the cleaner normally gets Rs. 105 per month.'

4. Feeling aggrieved by the said decision rejecting the application, the appellants have filed the above First Appeal in which Rs. 3,500 is mentioned as the value of the claim for advocate's fees and in ground No. 25 it is mentioned that Rs. 3,500 should have been awarded as compensation. Mr. Bhadekar, learned Counsel for the appellants, however, has submitted that the figure Rs. 3,500 was taken by mistake on his part from the judgment of the Civil Judge without verifying from the actual scale prescribed in the statute and in the ends of justice the appellants should be allowed to amend the ground by substituting Rs. 3,500 by Rs. 7,000 as per Schedule IV substituted by Act 64 of 1962 with effect from February 1, 1963.

5. The amendment is opposed by Mr. Deo, firstly, on the ground that the appellants have claimed only Rs. 3,500 and secondly, on the ground that as the date of the death was prior to February 1, 1963, when Act 64 of 1962 came into force the compensation payable would be under the old Schedule IV and not under the Schedule IV as substituted by Act 64 of 1962.

6. As stated above, the application was made on March 24, 1964, after the substitution of the new schedule. The question as to what compensation should be awarded by the Court under Section 4 is regulated by Schedule IV and Section 4 of the Workmen's Compensation Act, 1923. Section 4(1), in so far as it is material, lays down:

Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--(a) Where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV--the amounts shown against such limits in the second column thereof;

Section 3(1) lays down that:

If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

The respondent had no vested right in paying the lesser compensation under Section 3 or under Section 4 under the old Schedule. The question as to. what compensation is to be given is essentially a question arising under Use fori. It is for the Court granting compensation to determine as to what compensation is to be given. No party can have a vested right when such a power is vested in the adjudicating authorities.

7. On the date when the application was made by the appellants, the Court had power to grant compensation under the amended Schedule IV, which prescribed that in the event of death where the workman's salary was more than Rs. 100 and less than Rs. 200 per month, Rs. 7,000 by way of compensation shall be paid to his dependants. It is clear that Mr. Bhadekar, when filing the above appeal made a mistake in the present case as frankly and fairly admitted by him. The original application mentioned Rs. 7,000 as the compensation. Mr. Bhadekar had no authority to reduce the compensation which was awarded by the Act. The fact that under the memo of appeal Rs. 3,500 was mentioned as value for advocate's fees, was not enough to disentitle the appellants' claim to recover Rs. 7,000, which was awarded by the statute as compensation for death. Mr. Bhadekar is, therefore, permitted to amend in the course of the day, the memo of appeal by substituting Rs. 7,000 wherever Rs. 3,500 is wrongly mentioned by him.

8. The grievance of Mr. Deo that he had no opportunity to meet a claim of Rs. 7,000 is a grievance for which there is no justification, as Schedule IV of the Act clearly lays down under the new table the amount of compensation in respect of the death of a workman with salary of Rs. 105 as Rs. 7,000, This Court is bound to enforce the Schedule which lays down the basis of the compensation that must be awarded under the Workmen's Compensation Act.

9. It was next argued by Mr. Deo that the learned Civil Judge was right in holding that the deceased Ratanchand was not a workman within the meaning of Section 2(1), Clause (n) of the Workmen's Compensation Act, which runs as follows:

'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--

(i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890, not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

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

whether the contract of employment was made before or after the passing of this Act and whether such contract is, expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.

The learned Judge? has found as a fact that the deceased Ratanchand was a cleaner of the truck. He relied on (1) the evidence of the widow of the deceased Ratanchand, Kasturbai, appellant No. 1; (2) exh. 45, the statement of the respondent himself recorded by P.S.,1. Narayan Krishnarao Lathkar, the appellants' witness No. 5 at exh. 44, in the course of which the respondent himself had clearly admitted that the deceased Ratanehand was a cleaner; and (3) exh. 46 the statement of deceased driver Sharnappa, who also admitted that the deceased Ratanchand was a cleaner of the truck.

10. I do not find any justification whatsoever to discard the said evidence. It is proved beyond a shadow of doubt that the respondent himself and his brother, who was according to the respondent driving the truck, admitted before the Police Sub-Inspector that the deceased Ratanehand was a cleaner of the truck. The only reason given by the learned Civil Judge for holding that the deceased was not a workman was that in Schedule II item (xxv) only a driver of the vehicle is mentioned and not the cleaner. This reason ignores Schedule II item (i), which included in the definition of the workman,

person employed, otherwise than in a clerical capacity or on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading, of any such vehicle.

There can be no doubt whatsoever that the cleaner of the truck as such is a person employed, otherwise than in a clerical capacity in connection with the operation or maintenance of the truck, which is a vehicle propelled by mechanical power.

11. The learned Civil Judge, therefore, erred in law in holding that the cleaner of the truck was not a workman within the meaning of the definition of 'workman' contained in Section 2(1)(n) of the Workmen's Compensation Act. If any authorities were necessary for supporting this view of the matter, see Shanthamallappa v. Chandappa AIR[1958] May. 116 where a cleaner of a lorry was regarded as a workman; Nanda Kumar v. (Pramatha Nath (1937) 42 C.W.N. 123, where a conductor of an omnibus was regarded as a person employed in connection with the operation or maintenance of a mechanically propelled vehicle and was, therefore, held to be a workman within the meaning of Section 2(1)(n) read with Schedule II item (i) of the Act; and Pollach Transport, Ltd. v. Arumuga [1938] Mad. 636, where the conductor of motor bus was held to be a workman.

12. It was next argued by Mr. Deo that there was no evidence to show that the salary of the deceased Ratanehand was Rs. 105 or between Rs. 100 and 200 per month. This argument ignores the evidence of Kasturbai. According to her, her husband was getting Rs. 125 per month as a cleaner. The evidence of Khandappa Parit, the appellants' witness No. 4, who was a cleaner of one Sidramappa was that he was getting Rs. 105 per month. Although, the learned Civil Judge was wrong in referring to the evidence in para. 8 as 'there is no evidence,' what he appears to have meant was that 'there is evidence' to show that normally the salary of a cleaner was Rs. 105 per month.

13. Next, it was contended by Mr. Deo that4t cannot be said that the accident arose out of and in the course of the employment of the deceased Ratanehand. The learned Civil Judge has found as a fact that the evidence led by the appellants clearly establishes that the deceased Ratanehand was in the employment of the respondent. The contentions of the respondent that the deceased was going for his private work and he used to be employed by way of a casual employment have not been accepted by the learned Civil Judge. There is no reason to disbelieve the evidence of Kasturbai in this behalf, which was accepted by the learned Civil Judge. It must, therefore, be held that the deceased Ratanehand had died as a result of the accident arising out of and in the course of the employment with the respondent. In view of this conclusion, it must be held that under Schedule IV substituted by Act 64 of 1962, the appellants were entitled to Rs. 7,000 as compensation for the death of the deceased Ratanehand, as claimed by them in their application and as claimed by Kasturbai in the course of her evidence.

14. The First Appeal is, therefore, allowed. The order of the learned Civil Judge dated November 30, 1967, dismissing the petition made by the appellants is set aside. It is ordered that the respondent shall pay Rs. 7,000 as compensation to the appellants under Section 4(1)(a) read with Schedule IV of the Workmen's Compensation Act, 1923, The appellants to recover the costs of this appeal and before the lower Court from the respondent. The appeal allowed with costs.


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