P.B. Sawant, J.
1. This is an appeal by the Bombay Port Trust against the order passed by the Commissioner for Workmen's Compensation, Bombay, under the Workmen's Compensation Act, 1923 (hereinafter referred to as the said Act). The admitted facts are that the deceased Vinod Aljimulla Rathod was employed with the Port Trust as a sweeper at the Byculla and Sandhurst Railway Stations. On 12-6-1974 while he was on duty he met with a railway accident between Byculla and Sandhurst Railway Station and died after he was admitted to the Byculla Railway Hospital. At the time of his death his wages were Rs. 283.44 per month. The Port Trust had resisted the application for compensation on the ground firstly that the deceased was not a workman within the meaning of the said Act and secondly, the death was not during the course of the employment. The learned Commissioner negatived both the said grounds and awarded a sum of Rs. 8,000/- as compensation by his order dated 7-3-1977.
2. For the reasons stated in First Appeal No. 304 of 1977, a workman who was admittedly a sweeper would be covered by the definition of workman given in the said Act. It is not necessary to repeat the said reasons here. As regards the second grievance viz., that the deceased had not died during the course of his employment, the vidence led on behalf of the workman shows that the duty hours were from 8.00 a.m. to 3.30 p.m. with a lunch break of half an hour between 11.30 a.m. and 12.00 noon. The evidence also further shows that the workman had met with a railway accident between Byculla and Sandhurst Railway Station sometime during the said duty hours. It is true that there is no clear evidence whether the workman met with the accident during his lunch recess, or non-recess hours. The evidence led by both sides is silent on this aspect. There is however no reason why in such circumstances, the case made out on behalf of the workman that the accident was during the hours of employment should not be accepted when admittedly the accident had occurred between 8.00 a.m. and 3.30 p.m. which were the duty hours. Unless contrary is shown by the employer, it will have to be presumed that the workman met with the accident during the hours of employment and hence during course of the employment.
3. Although the reasoning of the learned Commissioner on the first point is erroneous for the reasons stated in my judgment in First Appeal No. 304 of 1977, there is therefore no reason to disturb the award of compensation. The appeal is therefore dismissed since nobody appears for the other side, there will be no order as to costs.