1. This is an appeal on behalf of one Rampeary Dosadin, the widow of one Chancier Ram, who admittedly fell from a lorry in Strand Road on 17-5-1951 and died on 18th May following. The widow of the deceased made an application for compensation on the footing that her deceased husband had been employed under the respondents and that the nature of his occupation was such that he was workman within the meaning of the Act. His wages were alleged to have been Rs. 60/- per month and on the basis of that rate of wages, compensation of the amount of Rs. 1800/- was asked for.
2. It was not denied by the respondents that on the day of the occurrence Chander Ram was riding a lorry belonging to them and that he had suffered a fall from that lorry which had ultimately caused his death. What was pleaded, however, was that Chander Ram was not in their employment at all, but was an employee of the Railway and Telegraph Stores and he was simply being given a lift on the day in question by one of the respondent' own coolies to whom he was known. It was contended, in the second place, that in any event Chander Ram was not a workman within the definition of the Act.
3. The Commissioner framed two issues which he placed in a somewhat illogical order. The second issue, which should have been the first, asked whether the deceased had been employed under the respondents. The first issue, which should have been the second, asked whether the deceased was a workman within the meaning of Section 2(1)(n), Workmen's Compensation Act.
4. I am bound to say that the finding recorded by the learned Commissioner on the second of the issues framed by him is not very firm or satisfactory. All that he has said is that the facts proved in the case are not inconsistent with the respondents' story. A tribunal charged with finding what the facts are docs not discharge its duty by holding that the facts are consistent with the respective cases of both parties. It has to come to a clear finding in favour of one party or the other.
If the case turned solely on the finding recorded by the Commissioner on the second issue, we would have been bound to remit the case for a proper finding, but it appears to me that we are relieved of that necessity by the decision with regard to the first issue. That issue, as I have already stated, was whether the deceased had been a workman within the meaning of the Act. The Commissioner has found that even assuming that the deceased was employed under the respondents, his employment was only that of loading and unloading and, therefore, he could not be said to have been concerned with the operation or maintenance of the lorries.
It is necessary to state here that the respondents any on the business of public carriers and the case made before the Commissioner appears to have been one under Clause (1) of Schedule II to the Act. I need hardly say that on the facts found, it is impossible to hold that the deceased could have been employed in the operation or maintenance of the lorries. He was a regular employee of the Railway and Telegraph Stores and the case made by his widow was that on the day in question he was on leave and was employed by the respondents as a casual labourer, because they were running short of coolies for the time being.
It was also proved by evidence called from the Railway and Telegraph Stores that the deceased was actually on leave on the day in question. It is, to my mind, incredible that any carrier or, for the matter of that, any contractor, will employ a coolie permanently engaged elsewhere for a day or two and entrust to him the operation or maintenance of his motor vehicles.
The finding arrived at by the Commissioner that the deceased, even if he was employed under the respondents, was only employed in loading and unloading the goods seems to me to be the only finding which is consistent with the proved facts of the case. That being so, he did not come under Clause (1) of the Schedule, as the Commissioner rightly held.
5. An attempt was made before us to argue that even assuming that the deceased did not come under Clause (1), he at least came under Clause (26). That clause concerns a workman who is employed in the handling or transport of goods in any warehouse or other place in which goods are stored, and in which on any one day of the preceding twelve months ten or more persons have been so employed. I have quoted the definition in extenso only for the purpose of pointing out that it involves several questions of fact and, therefore, it is impossible to allow the appellant to make any new case under Clause (26) for the first time in the Court of Appeal.
6. In my view, there are no merits whatever in this appeal. It is accordingly dismissed. We make no order as to costs.
7. There was an application connected with the appeal. No orders on the application are necessary.
S.R. Das Gupta, J.
8. I agree.