V.R. Newaskar, J.
1. This is an employer's appeal against an award of compensation to the heirs of the deceased workman Gangaram under the Workmen's Compensation Act. The principal defence to the action were (i) that the deceased was not a workman within1 the definition of the term as given in Section 2(i)(n) of the Workmen's Compensation Act hereinafter called 'the Act', his employment being of a casual nature, and (ii) that the accident in the course of which he lost his life had not taken place in the course and arising out of his employment issue No. (1) was found against the appellant by the Commissioner for Workmen's Compensation Act and on a finding that the deceased had been employed on daily wages of Rs. 5/-, the respondents were awarded Rs. 3,500/- as compensation.
2. The facts were that the appellant was constructing his own house and had employed artisans and labourers for that purpose. Deceased Gangaram was one of them. It is admitted by the appellant that the deceased had worked on Rs. 5/- per day for the construction work in the third storey, he fell-down from there and died within 2 or 3 hours due to this fall.
3. Now in order to appreciate the contention of the appellant whether the deceased was a workman within the meaning of the term as defined in section 2(1)(n) of the Act it will be necessary to examine the definition and its applicability to the admitted circumstances of the case as detailed above. Section 2(1)(n) defines workman.
Section 2(1)(n) :-
' 'Workman' means any person other than that 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 four hundred rupees, in any such capacity as is specified in Schedule II.'
Schedule II(viii) (a) specifies the capacity of a pec-son 'employed in the construction, repair or demolition of any building which is designed to be or is or has been more than one storey in height above the ground or twenty feet or more in height from its lowest to highest point' as being within Section 2 CD (n).
4. It is well settled as held in AIR 1946 Bom 169, Alimohamed v. Shankar, AIR 1943 Lah 52 Cooling Equipment Co. Ltd. v. Mt. Zainab Bibi and 1960 MP LJ 89: (AIR 1960 Madh Pra 267), Ghasiram v. Nannibai, that reference to employment on monthly wages in section 2(1)(n) means employment at wages which do not exceed on an average Rs. 400/- P.M. and that it is not limited to workmen who are employed by month. Consequently even persons employed by day or by week or year are within the definition.
5. We have now to consider whether deceased Gangaram's employment was of casual nature. As held in AIR 1933 Bom 270, Ebrahim v. Jainibi. whether the employment of a particular workman is of casual nature or otherwise depends upon the nature of employment and onus in such cases is upon the employer to prove the conditions necessary for excluding a person from the category of workmen. In that case reference was made to Hughes v. Walker, (1926) 19 BW CC 79, where it was observed at page 85:
'In the present case it appears to me that there was evidence before the County Court Judge which would justify him in holding that a man employed to build a wall at a rate of wages, whether determined by the hour, by the week or by the day I care not, but employed to build a wall, might well be found to be engaged in an employment that was not of a casual nature.'
6. Having regard to the opinion thus expressed with which I respectfully agree there is no doubt that in the present case the employment of the deceased was not of a casual nature.
7. Thus one of the two conditions which must co-exist in order that a person may be taken out of the category of workman is absent namely that the employment of the deceased was not of a casual nature. It then follows that even if the other condition is assumed to exist namely that the deceased had not been employed in the course of the employer's trade or business, still he cannot be taken out of the category of workman as defined in the Act.
8. There is therefore no reason to think that the learned Commissioner was in error in holding him to be a workman. The award of compensation is consequently lawful and proper. It may be stated that under first proviso to Section 30 of the Act an appeal to the High Court is not competentunless a substantial question of law is involved.Such is not the case here.
9. The appeal is therefore without force and is dismissed with costs.