Per Somnath Ayyar, J.
1. A certain Malhari was one of the mazdoors employed by the Posts and Telegraphs Department for the creation of telephone lines along the railway track near the Desur railway station which was at a short distance from Belgaum. He was working there from October 4, 1961, and, at 6.30 a.m. on October 14, 1961, while he was returning with a bucket of water which he had collected from a stationary engine on the off-side of the Desur railway station, he was knocked down by an incoming passenger train and killed. His father made an ' application for the payment of a sum of Rs. 2,551 as compensation payable under the Workmen's Compensation Act which was dismissed by the Commissioner for Workmen's Compensation, Belgaum, on the ground that the accident did not arise out of and in the course of employment.
2. So this appeal.
3. Evidence was produced by the appellant that the mazdoors who were employed by the posts and Telegraphs Department for the erection of the telephone line were living in a tent which had been erected near the rail way station and that on the day of the accident, the jamadar under whose superintendence the mazdoors worked had gone to his place and so had entrusted the super vision to two persons named Peerkhan and Nagappa Laxman. the evidence was also to the effect that those two persons asked Malhari to bring water for cleaning the insulators which had to be fixed, and, that Malhari went to the stationary engine to fetch water for that purpose.
4. The Deputy Commissioner negatived the contention of the department that Malhari was not a workman as defined by S. 2(1)(n) of the Workmen's Compensation Act (which will be referred to as the Act). But he was of the view that in the absence of evidence that one of the duties of Malhari was to fetch water for cleaning the insulators it could not be said that the accident arose out of and in the course of his employment. The Commissioner rested his decision on the additional ground that there was negligence on the part of Malhari.
5. Sri Shirgurkar for the appellant submitted that since the Commissioner did not disbelieve the evidence produced on behalf of the appellant that Malhari was required by Peerkhan and Nagappa Laxman to bring water for cleaning the insulators, it was impossible for him to refuse a direction for the payment of compensation on the unavailable ground that the appellant should have produced evidence that one of the conditions of his employment was that he should bring water for cleaning the insulators when required to do so by those who were supervising his work. Sri Shirgurkar also called in question the relevance of the finding of the Commissioner that there was negligence on the part of Malhari.
6. Before discussing the correctness of the finding of the Commissioner that the accident did not arise out of and in the course of Malhari's employment, it would be convenient to address ourselves in the first instance to the argument maintained by Sri Keshava Ayyangar, the learned Central Government Pleader, that the Commissioner was in error in thinking that Malhari was a workman. In support of the submission that he was not, Sri Ayyangar depended upon the definition of a workman contained in S. 2(1)(n) of the Act which reads :
'2. Definition. - (1) In this Act, unless there is anything repugnant in the subject or context, -
* * *
(n) `workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trades or business) who is -
(i) * * *
(ii) employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Sch. II,
* * * '
7. That the employment was of a casual nature can be of little assistance to him since employment of a casual nature is not by itself enough unless the employment is also for a purpose other than the employer's trade or business. Those two conditions must exist cumulatively to take a workman out of the definition, and since it is not disputed that although Malhari was employed as a cooly on daily wages, his employment was for the purpose of the activity of the Posts and Telegraphs Department, the question is whether Malhari was a person employed on monthly wages not exceeding Rs. 500 within the meaning of Clause (ii) of the definition. The stress of Sri Ayyangar's arguments was that Malhari was not employed on monthly wages although the wages earned by him during the period of one month did not exceed Rs. 500. We are asked to say that since Malhari was paid his wages every day and not after the expiry of a month, the wages earned by him were not monthly wages within the meaning of that expression occurring in the clause and that Malhari was not therefore a workman as defined by the Act.
8. Since Malhari was not a workman as defined by Clause (i), he can be regarded as a workman only if he fell within Clause (ii). If he was an employee on monthly wages, he would plainly fall within that clause.
9. It seems to us that we should not understand the word 'monthly' occurring in that clause in the sense suggested by Sri Ayyangar. That word which has reference to a period selected for the computation of the wages earned during that space of time, for the exclusion from the definition of those whose aggregate wages so determined exceed the prescribed limits, does not concern itself with the periodicity of payment. It speaks of the aggregate wages earned during a month whatever the points of times at which they are received, and, even if they are paid at intervals shorter or longer than a month. So understood, a workman who receives wages which do not aggregate to more than Rs. 500 during the period of one month is a work man within the definition, whether he is paid his wages by the day or by the week or by the month or by the year or at any other stated intervals of time.
10. Any other interpretation would exclude from the definition a workman who is paid either by the day or by the week or by the year and it could not have been the legislative intent that compensation should be paid only to those workmen who are paid at the end of a month and not to those whose wages are paid at shorter or longer intervals. Such discrimination for which there could be no rational explanation could not have been the legislative intent.
11. In our opinion, the emphasis of the definition is more upon the quantum of income during a given period and not upon the frequency of its payment,
12. We should, therefore, dismiss the challenge to the Commissioner's finding that Malhari was a workman.
13. The next question is whether the accident which caused his death, arose out of and in the course of his employment. It is obvious and Sri Ayyangar did not contest the correctness of the proposition - that if indeed Malhari was asked by the two persons who were entrusted by the jamadar with the superintendence of the work carried on by the mazdoors, to bring water for cleaning the insulators, and Malhari went to the stationary engine for collecting the water so required and was killed while he was returning. the accident which caused his death was one which arose out of and in the course of employment.
14. But, while Sri Shirgurkar maintained that the evidence tendered on behalf of the appellant to that effect was accepted by the Commissioner and not disbelieved and that therefore, it became impossible for the Commissioner to find that the accident did not arise out of and in the course of employment. Sri Ayyangar equally forcibly maintained that the Commissioner did not believe that evidence and that the rejection of that evidence by the Commissioner was the end of this appeal which could succeed only if there was a substantial question of law.
15. In the course of his order, the Commissioner set out with great clarity the effect of the evidence given by the witnesses examined for the appellant and for the department. Four witnesses were examined for the appellant and one for the department. Among the witnesses for the appellant, one was a mazdoor Gundu Gangaram, who was working along with Malhari and his evidence was to the effect that on the day on which Malhari was killed, the jamadar who had gone else where had entrusted the supervision to Peerkhan and Nagappa Laxman and that on their asking him to do so, Malhari had gone to fetch water to clean the insulators. He stated that Malhari went with a bucket for that purpose and that by then the cooking of the food in the tent had been attended to. It is not necessary to refer to the evidence of the other witnesses examined for the appellant since they gave evidence only about the accident.
16. But Maktum Husan, a sub-inspector of the Posts and Telegraphs Department, stated that he was present in the place where the mazdoors were working on the date of the accident and that he did not instruct any mazdoor to fetch water to clean any insulator any and he added that it was not a fact that Peerkhan and Nagappa had asked Malhari to fetch water for cleaning the insulators.
17. The Commissioner who set out the evidence given by these two witnesses in great detail in the course of his order, did not state that Gundu Gangaram was not a witness of truth. But, on the other hand, he concentrated his attention on the irrelevant question whether evidence was available to show that it was part of the duties of Malhari to bring water for cleaning the insulators when asked to do so. Although Sri Ayyangar strenuously contended that the Commissioner did disbelieve the evidence of Gundu Gangaram and that is how we should understand the relevant discussion made by him, we do not find it possible to do so. The following passage in the Commissioner's order makes it clear that he addressed himself to the only question whether one of the conditions of Malhari's employment enjoined him to bring water for cleaning the insulators if he was asked to do so. It reads :
'No satisfactory evidence has been led by the applicant to prove that the deceased had been required to bring water for the purpose. In the absence of evidence to show that the deceased was required as part of his employment to fetch water for the purpose stated, it cannot be held that the accident occurred out of and in the course of his employment ..... In the present case, except the bare oral testimony of Gundu Gangaram, no evidence has been adduced on applicant's behalf to show that it was incumbent on the deceased workman as part of his employment to fetch water from the railway engine for the purpose of cleaning the insulators as contended.'
18. Although the first sentence in this part of the Commissioner's order is somewhat dubiously worded, it is clear to our mind that the word 'required' occurring therein which the commissioner employed, has reference to the conditions of employment as could be clearly gathered from the other parts of the order which we have extracted above.
19. It is indisputable that it was not necessary for the appellant to produce evidence that it was one of the conditions of Malhari's employment that he should bring water for cleaning the insulators if he was asked to do so by those who were supervising his work. If water was required for cleaning insulators and Malhari was a mazdoor working on the erection of the telephone lines, it was hardly necessary for the appellant to prove that there was an express condition of the employment that he should bring water for that purpose. Nothing is plainer than that it was Malhari's duty as a mazdoor to obey all directions which had any association with or were necessary for the work for the completion of which he had been employed, and, one such is obviously a direction to bring water on being asked to do so for cleaning the insulators which had to be fixed on the telephone lines.
20. Gundu Gangaram's evidence that Malhari was asked to bring water for that purpose by the two persons who were supervising his work, was not disbelieved by the Commissioner. The Commissioner did not sate that he accepted the evidence of the sub-inspector examined for the department that those two persons did not ask Malhari to bring any water. On the contrary, it is obvious that the Commissioner misunderstood the evidence of Gundu Gangaram as evidence that it was incumbent upon Malhari as part of his duty to fetch water for cleaning the insulators.
21. The Commissioner proceeded to state that the department had 'flatly denied' that any water was necessary to clean the insulators since they were all new, and, the mistake committed by him was to accept that averment in the pleading as the truth without his depending upon any evidence in support of that assertion. It may be, as argued by Sri Ayyangar that the department did produce evidence about it but to that evidence the Commissioner did not advert.
22. So, this is not a case in which we can say as Sri Ayyangar asked us to say, that there is no substantial question of law and that the decision of the Commissioner is founded upon a finding on a pure question of fact. On the contrary, what makes the decision of the Commissioner erroneous is his wrong understanding of the law that in addition to the evidence given by Gundu Gangaram that Malhari was indeed asked to bring water for cleaning the insulators, which he did not distrust, the appellant should have established that the duty to bring water when asked to do so, was one of the conditions of employment. It is that error of law which, in our opinion, is substantial, which entitles the appellant to call in question the decision of the Commissioner, under S. 30 of the Act.
23. Sri Ayyangar did not dispute that the Commissioner in depending upon negligence overlooked the clear probations of proviso (b) to S. 3(1) of the Act which makes negligence irrelevant in the case of death. Under that proviso, negligence is no defence when the accident has resulted in death, and even otherwise, as Sri Shirgurkar rightly urged, the categories of negligence enumerated in proviso (b) are exhaustive and the negligence found by the Commissioner is not one of them.
24. At one stage, we were asked by Sri Ayyangar to remit the matter to the Commissioner to enable him to record clearer findings on the question whether Gundu Gangaram's evidence was or was not acceptable. But we do not consider it necessary to do so since, in or opinion, it is very clear that the Commissioner did not disbelieve his evidence.
25. We, therefore, reverse the finding of the Commissioner that the accident did not arise out of and in the course of Malhari's employment, and, substitute a finding that it did.
26. It is not controverted that the compensation claimed by the appellant it that to which he is entitled under the Act since the computation made by him is in accordance with the basis afforded by Sch. IV to the Act.
27. So, in reversal of the order made by the Commissioner, we make an order that the respondent shall pay to the appellant a sum of Rs. 2,551 with interest thereon at 6 per cent a year from January 2, 1962 which is the date on which an application for compensation was made till date of payment.
28. The appellant will get his costs both in this Court as well as in the Court below. Advocate's fee in each Court is Rs. 100.