S. Barman, J.
1. The Employer is the appellant, in this Misc. Appeal, from an order of the Commissioner, Workmen's Compensation, Koraput, dated September 15, 1958 allowing compensation to the widow of the workman (respondent herein) under the Workmen's Compensation Act, 1923 (Act VIII of 1923) of a sum of Rs. 2,400/-under the said Act.
2. The claim of the respondent,--who is the widow of the alleged workman, arose thus; while her husband, on January 27, 1954 was piling up paddy bags as a Khalasi in the Trinath Rice Mill, Gunupur, in the district of Koraput, one bag is alleged to have fallen over him, as a result of which he died, on the same day. The claimant's case is that her husband was earning Rs. 2/- to Rs. 3/- per day. The deceased workman is stated to be aged about 35 years at the time of his death.
The deceased workman's widow claimed lump sum of Rs 2.400/- on the basis of remuneration that the husband was earning from his employment at the rice mill. The defence to the claim,--as stated by the employer, which is Trinath Rice Mill, of whom the appellant Ladi Jagannadham is a partner,--is that the deceased was not a workman of the employer; that the Government had employed agents and sub-agents for procuring paddy; these agents are stated to have stored paddy in the Rice Mill for the purpose of being converted into rice; if at all, the workman was an employee of the agent or sub-agent and not of the Rice Mill; that the accident did not take place during the course of employment; that as a matter of fact the deceased Khalasi died not on account of the accident, but due to overdrinking and alcohol poisoning as--according to the employer--is shown by the doctor's certificate and the chemical examiner's report; that in short, death was not due to fall of bag but due to alcohol poisoning and that there was no external injury on the body of the deceased.
3. The Commissioner, Workmen's Compensation--on the evidence adduced before him,--found that the deceased workman died from the accident; that he was workman under the Rice Mill and was entitled to a sum of Rs. 2,400/- on the basis that he was earning Rs. 2/- to Rs. 3/- per day, that is to say Rs. 75/- per month on an average, as permissible under Schedule IV reads with Section 4 of the Act. Hence the appeal by the employer.
4. Mr. N.V. Ramdas, learned counsel for the employer, first contended that the deceased was not a workman of the Rice Mill and further that he did not die as a result of the accident as alleged.
5. On the question,--whether the deceased was a workman,--the point has to be considered in the light of the definition of 'workman' as defined in the Workmen's Compensation Act. Section 2(1)(n) of the Act defines 'workman' to mean any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of employee's trade or business) who is employed on monthly wages not exceeding Rs. 400/- in any such capacity as is specified in Schedule II of the Act, whether the contract of employment was made before or after the passing of the Act and whether such contract is expressed or implied, oral or in writing.
In this regard Schedule II,--which gives a list of persons, who subject to the provisions of Section 2(1)(n) are included in the definition of 'workman'; is also to be taken into consideration; the Schedule gives a list of persons who are to be deemed as workman within the meaning of Section 2(1)(n); it gives a comprehensive list which though not exhaustive is certainly illustrative of the nature of the work which makes an employee a workman within the meaning of the Act.
Mr. Ramdas's contention in this regard is that the deceased was not a regular employee of the Rice Mill but was only a casual worker of the Rice Mill. The learned counsel also relies on Section 12(1) of the Act, in support of his proposition, that if the deceased was a workman of the sub-agent, the employer cannot be made liable for the accident caused to the employee of the sub-agent.
On the question whether the deceased was a workman, five witnesses were called, on behalf of the claimant, including three fellow workmen of the deceased, namely, P.Ws. 1, 2 and 3 and also P.W. 5 the widow herself. The evidence of these witnesses is to the effect that the deceased was a workman of the Rice Mill in their employment. The evidence of the widow P.W. 5 is that her husband was working for the Rice Mill and not for any other person.
In this context, I notice the evidence of P.W. 3 who states that the deceased was regularly attending the Mill except on Sundays when the Rice Mill was closed. Apart from evidence, even from the counter petition filed by the employer, it appears that the deceased's engagement was of a casual nature though he was not a regular employee under the Rice Mill. In paragraph 1 of the statement filed by the employer there is a reference to the rolls of the employees of the Mill, which, however, has not been produced to show the names of the employees which actually have been entered in the rolls of the workmen of the establishment.
The alleged non-mention of the deceased Khalasi's name in the rolls of the workmen of the Mill would have supported the employer's case that the deceased was not a regular worker of the Mill in its rolls. The non-production of the rolls of the employees, certainly leads to certain presumption against the employer on the point. The employer takes the stand that the Mill having not been registered as a factory, under the Factories Act, it was not required to maintain a muster-roll of the workmen working in the Mill.
That, however, is no explanation for their not producing the rolls of the employees of the Mill referred to in the said statement. It is in evidence that this Mill has been working for the last 10 years from 1944. Therefore it is not believable that the Mill did not preserve any rolls of their employees who were engaged in the concern. In any event, the fact of their not producing the rolls, goes against the employer on the question whether the deceased was a workman or not.
On this point, the employer also called five witnesses, including the partners of the Mill being O. P. W. 1, the sub-agent, O. P. W. 2, paddy supplier O. P. W. 3, and the Clerk of the Mill O. P. W. 4. The evidence of none of these persons is reliable, because they are all interested witnesses. In this view of the evidence I accept the finding of the Commissioner, that the deceased was a workman within the meaning of the Act.
6. On the question,--whether the deceased died due to the accident as alleged,--the Act provides for the employer's liability for compensation as provided in Section 3(1)(b)(i) which lays down that if a personal injury is caused to a workman, by accident arising out of or in course of employment, his employer is liable to pay compensation in accordance with the provisions of Chapter II of the Act, provided that the employer shall not be so liable, in respect of any injury, not resulting in death caused by an accident which is directly attributable to the workman having been at the time under the influence of drink or drugs.
In the present case the evidence, called on behalf of the claimant, proves that on the date of the accident the deceased came to the Mill in the usual course and was carrying paddy bags, in course of which, one of the bags fell on him and he was crushed thereunder. A fellow workman P. W. 1 said that he along with others had found the deceased lying on the floor of the Mill with some bags over him; that after removal of the bags, the Khalasis carried the body of the deceased to the office room; the evidence of the claimant's witnesses clearly shows that there can be no mistake about the fact of the accident due to which the deceased died.
In this context the evidence of the doctor O. P. W. 5 has to be taken into consideration. According to his evidence there was one abrasion on the body of the deceased. The nature of the accident due to the fall of bag is such that it is quite possible that death can be caused without external injury due to the impact of the heavy bag on the body of the deceased. Thus viewed, the absence of any other external injury on the body of the deceased does not rule out the possibility of death due to the fall of the bag without leaving external injuries.
It is thus clear from evidence that the deceased died due to the accident in course of his employment under the Mill. It is clear from the evidence of the deceased's fellow-workmen that the deceased died due to the fall of heavy bag on him. In the face of such direct evidence of fall of a heavy bag on the deceased which crushed him to death, I do not accept the employer's case of the deceased having died due to overdrinking and alcohol poisoning as alleged.
The mere presence of smell of country liquor on opening the stomach of the deceased, as found in the post-mortem report or detection of some alcohol by the Chemical Examiner, is not enough to outweigh the positive evidence of the eye-witnesses to the accident. I am satisfied that, whatever may be the reason of smell of country liquor or presence of alcohol,--the immediate cause of the deceased's death was the said accident.
7. My above view on both these points is also supported by certain passages from an inspection report dated June 8, 1954 which, according to Mr. Ramdas, is not admissible in evidence. The respondent claimant not having appeared in this appeal, there is no explanation forthcoming how this document came to be introduced in the proceedings before the Commissioner. On the question of admissibility, I do not want to express any opinion because my decision, on merits, is based on sufficient evidence.
8. As to the amount of compensation, Section 4(1)(a) of the Act provides that the amount shall be, where death results from injury in the case of an adult in receipt of monthly wages falling within limits shown in the first column of Schedule IV--the amount shown against such limits in the second column thereof; the other relevant provision in this context is Section 10A(4) which gives powers to the Commissioner as provided in that Section.
In the present case, the Commissioner came to the conclusion that the claimant is entitled to Rs. 2,400/- on the basis of his daily wages of Rs. 2/- to Rs. 3/- per day. I am satisfied that the compensation awarded to the claimant was based on sound principle as provided for in Schedule IV of the Act and is reasonable. Therefore I do not propose to interfere with the finding of the Commissioner on the question of amount of compensation.
9. In conclusion, therefore, the decision of the Commissioner is upheld. This appeal is accordingly dismissed. The respondent not having appeared, I make no order as to costs of this appeal.