(1) This appeal arises out of proceedings before the Additional Commissioner for Workmen's Compensation Madras. The appellant here in is the Executive Engineer (Construction), West Division, Department of Industries and Commerce. He opposed the application filed by the respondents in respect of the death of one T. Tukaram, as a result of personal injury by an accident arising out of and in the course of his employment on 14-5-1959 under the Executive Engineer.
(2) The deceased Tukaram was employed as Works Inspector by the Department of Industries and Commerce in connection with the construction of a building at Salem for handloom mill parts. On the fatal day the Assistant Engineer, who was in charge of the spot and acting under the directions of the Executive Engineer, asked the deceased to go over to the office and prepare a site plan indicating the position of various main and sub-works to be constructed in the building. In pursuance of the directions given by the Assistant Engineer the deceased Tukaram was proceeding on a cycle towards the office. But unfortunately on the way he met with an accident, with the result he died on the same day. The application for payment of compensation under the Workmen's Compensation Act was filed by the father of the deceased and his other defendants.
(3) The application was resisted by the Executive Engineer on the ground that he State of Madras was not an employer as defined in S. 2(1)(e) of the Workmen's Compensation Act, that the deceased himself was not a workman as defined under Section 2(1)(n) of the Workmen's Compensation Act and that in any event the accident did not take place either out of or in the course of the employment.
(4) The Additional Commissioner for Workmen's Compensation gave findings that the Executive Engineer, a limb of the Department, was the employer, that the deceased was a workman and that the deceased died in the course of his employment, and granted compensation of a sum of Rupees 3500. It is against this order the Executive Engineer has preferred this appeal.
(5) In this appeal the learned counsel appearing for the appellant reiterated the same arguments, namely, that the Executive engineer was not the employer, that the deceased was not a workman as defined under S. 2(1)(n) of the Act and that the deceased Tukaram did not die in the course of the employment and that in any event the application was not maintainable. Under clause (viii) of Sch. II of the Act, any person who is employed in the construction, which is designed to be or is or has been more that one storey in height above the ground or 20 (sic) (12?) feet or more from the ground level to the apex of the roof is a workman.
(6) The point that has to be considered in this appeal is whether the Executive Engineer was the employer of the deceased Tukaram. This point can be easily disposed of, in view of the decisions of the various courts to the effect that, unless there is a specific exemption of the State in the statute, Acts would apply and bind the State. The Executive Engineer was in charge of a building to be constructed at Salem. The deceased was employed as works inspector to supervise the construction of the building. The Executive Engineer is an officer under the State Government and he is not immune form the provisions of the Workmen's Compensation Act, inasmuch as the department of the Government have been specifically included in S. 2(2) of the Act.
(7) Having found that the Executive Engineer was an employer of the deceased, the next question for consideration is whether the deceased was a workman, under the Workmen's Compensation Act. Admittedly he was a workmen, because he was in charge of the supervision of the construction of the building. He was not a holder of any diploma but was appointed to supervise the labourers, who were actually in charge of the construction of the building. He was a workman as defined under the Workmen's Compensation Act. The learned counsel for the State has stated that in order to attract the definition of workman as defined under values (viii) of Sch. II of the Workmen's Compensation Act it has to be proved that the building was more than one storey in height above the gourd or 20 (sic) (12?) feet or more from the ground level tot he apex of the roof. No doubt, this point is taken for the first time in this court. I do not see any discussion either in the judgement or in the pleadings filed by the State Government. Therefore, in the absence of a finding it is not possible for me to say that the deceased was not a workman under clause (viii) of Sch. II of the Act. When the respondents filed this application it is the duty of the State to prove sufficient materials before the Additional Commissioner for Workmen's Compensation. As they did not place any material before the Additional Commissioner for Workmen's Compensation they are not entitled to urge this point in this court.
(8) The next contention that was argued by the learned counsel for the appellant is that in any event the deceased did not die in the course of the employment as he accident took place, while he was proceeding on a cycle on a highway. In support of this contention he cited a passage at page 349 in Outlines of Industrial Law by Mansfield Cooper and J. C. Wood, 3rd Edn. which runs as follows:
'Thus, one of the chief tests is to determine whether what happened to the workman was one of the risks of his employment. If so, and injury arises, the injury benefit will be available. If, however, the injury arises form a hazard not incidental to the employment, benefit will not be payable.' No doubt, this proposition may be true but we have the course of his employment. It is clear that the accident took place while he was proceeding tot he office to prepare a site plan. On the facts it is clear that the decease Tukaram died in the course of the employment. The Additional Commissioner for Workmen's Compensation has taken into consideration all the facts in this case and gave a finding that the respondents were entitled to compensation.
(9) The learned counsel for the respondents brought to my notice that the father of the deceased, the first respondent, originally filed an application to the Minster for Industries for payment of compensation and accordingly a sum of Rs. 500 was sanctioned by a notification of the Government but this fact has not been placed before the Additional Commissioner for Workmen's Compensation. Therefore it is not possible for me to give any direction to the Additional Commissioner for Workmen's Compensation. This appeal fails and is dismissed but without costs.
(10) Appeal dismissed.