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Nadirsha Hormusji Sidhwa Vs. Krishnabai Bala - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai
Decided On
Case Number First Appeal No. 205 of 1934
Judge
Reported inAIR1936Bom199; (1936)38BOMLR280; 163Ind.Cas.79
AppellantNadirsha Hormusji Sidhwa
RespondentKrishnabai Bala
DispositionAppeal dismissed
Excerpt:
.....of 1923), section 2, sub-clause (ii); sch. ii, clause (viii) - 'repair'-necessary repainting of building-casual workman binding on-evidence by commissioner-finding of fact.;the word 'repair' in clause (viii) of schedule ii to the workmen's compensation act, 1923, includes renewal of the paint of a building which needs repainting.;dredge v. conway, jones & co. [1901] 2 k.b. 42, followed.;the finding of the commissioner for workmen's compensation, that the employment of a workman is or is not casual, which is based upon evidence, is finding of fact, and is not subject to appeal. - - the present case is clearly within the debatable area, and the commissioner having come to the conclusion that the employment is not casual, and there being evidence to support that finding, i think we..........is similar. i think that the rule adopted in england is this, that it is impossible to define what casual employment is. there are some cases in which the employment is obviously not casual, and other cases in which the employment is obviously casual. there are a number of debatable cases between those two extremes and the courts have held that in those debatable cases the decision of the county court judge must prevail. in other words, the rule seems to me to come to this that where there is any evidence to support the finding of the county court judge, or in india the commissioner, that the employment either is, or is not, casual, then the finding must be treated as a finding of fact, and is not subject to appeal. the present case is clearly within the debatable area, and the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from an award by the Commissioner for Workmen's Compensation, Bombay. The three contentions raised by the employer upon which the learned Commissioner had to adjudicate, are (1) that the employer the present appellant did not employ the deceased who was engaged by one Rama to whom the contract for painting the building had been given for a lump sum; (2) that the deceased Laxman Bala was not a workman because his employment was of a casual nature and he was employed otherwise than for the employer's trade or business; and (3) that he was not a workman according to the schedule because he was not engaged in the construction, repair or demolition of a building, painting not being repair within the meaning of the schedule.

2. On the first point the learned Commissioner held that it was the appellant, and not Rama, who employed the deceased workman. That seems to me to be a pure finding of fact with which we cannot deal in appeal.

3. Upon the second question, whether the employment was of a casual nature within the definition of Section 2, Sub-clause (ii), of the Act, the learned Commissioner held that it was not casual. He held that the work on which the deceased was engaged extended over a period of three months and was concerned with the painting and whitewashing of a large house on several floors containing thirty rooms, and he held that the fact that the workman was employed from day to day, and not for the whole job in the circumstances did not render the employment casual. We have been referred to the various decisions on the English Act in which the language is similar. I think that the rule adopted in England is this, that it is impossible to define what casual employment is. There are some cases in which the employment is obviously not casual, and other cases in which the employment is obviously casual. There are a number of debatable cases between those two extremes and the Courts have held that in those debatable cases the decision of the County Court Judge must prevail. In other words, the rule seems to me to come to this that where there is any evidence to support the finding of the County Court Judge, or in India the Commissioner, that the employment either is, or is not, casual, then the finding must be treated as a finding of fact, and is not subject to appeal. The present case is clearly within the debatable area, and the Commissioner having come to the conclusion that the employment is not casual, and there being evidence to support that finding, I think we are bound by it, and that it is not necessary to consider whether we should ourselves have taken the same view or not.

4. In regard to the third question, whether the painting of the house, which was the work on which the deceased was engaged, was ' repair ' within the meaning of Clause (viii) of the second schedule, the learned Commissioner held that it was, and I think there was clearly evidence to support that finding. In so far as the question involves the construction of the Act and the schedule, it is one of law, and I entirely agree with the view of the learned Commissioner. I should say that in normal cases the paint of a house becomes part of the structure, and if it falls into disrepair and has to be renewed, I should say that the renewal forms part of the repair of the house, or building, and that view has now been adopted in England : see Dredge v. Conway, Jones & Co. [1901] 2 K. B. 42 Mr. Bahadurji for the appellant has argued that ' repair ' does not include painting, and in support of that argument he relies on Clause (vii) of the second schedule which is dealing with ships, and includes loading, unloading, fuelling, constructing, repairing, demolishing, cleaning, or painting any ship. It is argued that, inasmuch as the two words ' repairing ' and ' painting' are included in that clause the legislature must have considered that repairing would not include painting and that, therefore, the word ' repairs ' in Sub-section (viii) should also be held not to include painting. I see no reason for drawing that conclusion. The legislature may have considered that it was less clear in the case of a ship, than in the case of a building, that repairs would include painting. For the reasons I have given it seems to me to be clear that repair must include renewal of the paint of a building. We are not dealing with a case, which might possibly arise and in which at any rate the point would be more arguable, where a house is being repainted simply because the owner wishes to change its colour, and not because the old paint is in a bad state of repair. In the present case the building was being repainted because repainting was necessary. In my opinion that clearly falls within the word 'repairs' in Sub-section (viii) of the second schedule, I think, therefore, that the appeal must be dismissed with costs.

Macklin, J.

5. I agree.


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