1. This is an appeal under Section 30 of the Workmen's Compensation Act against the order of the Commissioner for Workmen's Compensation, Madras, awarding Nagammal, the widow of a cooly, Venkataswami Naicker and his three minor children Rs. 810 as compensation. Venkataswami was employed along with some other coolies to unload a wagon of dehydrated potatoes at Avadi station. While carrying a box on his head it is said to have slipped on to his stomach and caused him an abdominal injury. This was on 4th September, 1946. He was removed to his village in the first instance and brought to hospital on 7th September, 1946, where he died on 14th September, 1946.
2. An appeal lies only if a substantial point of law is involved in the Commissioner's order. The learned Counsel for the appellant, who is a contractor by the name of Arumugham, fully realises this. He urges that the Commissioner on the evidence and on the facts wrongly found that Venkataswami was a workman within the scope of Section 2 (n) of the Act. This section defines a 'workman' as:
any person (other than 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 ... employed on monthly wages not exceeding four hundred rupees, in any such capacity as is specified in schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing.
3. It is common ground that the appellant, Arumugham, had a contract to unload wagons in the Avadi station for which he was paid Rs. 7 for each wagon. He had a maistry, one Somu, who worked under him and who, according to him, engaged coolies to whom he paid Rs. 5-4-0 for unloading each wagon keeping four annas for himself per wagon. On these admitted facts it is contended that Venkataswami was not a ' workman.' It is urged that he was a cooly who volunteered his services as a mere licensee and was under no contract of service with the contractor Arumugham. At the same time it is conceded that under Section 12 of the Act, Armugham as principal would be liable to compensate this cooly, if he was employed by Somu for the purposes of his business. Reliance is placed on a series of Rangoon decisions for a distinction in the matter of contracts contemplated in the definition of 'workman' in Section 2(n) of the Act on the ground that they must entail control over the workman and also inter alia powers of dismissal. The decisions cited before me are Lee Shi v. Consolidated Tin Mines of Burma, Ltd. A.I.R. 1939 Rang. 428 Ma Htwa Tin v. Maung Thet Hnin A.I.R. 1941 Rang. 61 (S.B.) and Workmen's Compensation of Jaglipathan In re A.L.R. 1936 Rang. 89 (S.B.). A distinction in those decisions does not appear to have been drawn in the case of a person who worked as a mere licensee paid by piece work rates for work which he did and over whose work the employer had no direct control. The view taken in these Rangoon decisions does not appear to have been adopted by any other High Court. It is conceded that it does not make any difference whether a person received monthly, weekly or daily wages and that recipients of wages in all those categories would come within the statutory definition of a ' workman.' One exception to the definition is that contained in the definition itself namely, that he must not be 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.
It has been suggested that the employment of this cooly was of a casual nature but the exception requires both this qualification and in addition the qualification that he was employed otherwise than for the purposes of his employer's business. In the present case this cooly was clearly employed for the purposes of unloading the wagon at the time of the accident which was the business of the petitioner.
4. Coming then to the contract of employment contemplated by the definition, there is nothing in the language which imports into the contract of service powers of dismissal or powers of direct superintendence or control. It can scarcely be argued that the employment of this cooly by Somu was not a contract of service. He was clearly engaged for a specified remuneration to help in the unloading of a wagon of goods. I am unable to see any ground on which this cooly Venkataswami, can be excluded from the definition of a workman in the Act. In Nadirsha Hormusji v. Krishnabai I.L.R. (1936) 60 Bom. 701 Beaumont, C.J., in considering the definition of casual nature of employment took the view that the rule adopted in England was that it was. impossible to define exactly what casual employment was. He observed that there are some cases in which employment is not obviously casual and other cases, in which employment is obviously casual and that there were a number of debatable cases between these two extremes on which a finding of the Commissioner must be treated as a finding of fact and not subject to any appeal. In this particular case there is the evidence of another cooly examined as P. W. 3 to the effect that he and Venkataswami were working together at Nafi godowns for the past eight months under the appellant Arumugham and that Arumugham used to be himself at the work spot and that Somu Maistry used to supervise the work of the coolies. This evidence has not been specifically contradicted either by Somu Maistry himself or by Arumugham both of whom have been examined. There is therefore plenty of evidence to support the Commissioner's finding of fact that Venkataswami was a workman within the required legal definition. It would appear that he was not even merely a casual cooly employed that day only to assist in unloading but that he was fairly regularly employed in unloading wagons by this contractor Arumugham. I can find nothing illegal in the order of the Commissioner. The appeal is dismissed with costs.
5. Pending the hearing of the appeal an order was passed requiring security before the withdrawal of the compensation which is under deposit with the Commissioner. The respondents are his widow and three minor children. The compensation can be withdrawn now by the widow without any security.