D.N. Sinha, C.J.
1. This is an appeal against an order of the Commissioner for Workmen's Compensation, West Bengal, dated 27 December 1964 (?).
2. The facts are briefly as follows.
3. An application was filed by one Alladi Bibee, mother of Ouladi Khan, under the Workmen's Compensation Act, 1923 (hereinafter referred to as the said Act), for a lump-Bum compensation of Rs. 3,000 against Gopal Das Nandy and Gobinda Das Nandy, heirs and legal representatives of one Akshoy Kumar Nandy, since deceased. The case of the petitioner is that Ouladi Khan, her son, was a painter-mistri. One Abdul Oudad Khan took Ouladi Khan to help him in a painting job at the Konnagar house, said to belong to the said Akshoy Kumar Nandy, deceased, and while he was working at a scaffolding from a height of over 20 feet, fell down and died. The lady first of all filed a case against the said Abdul Oudad Khan but the claim failed because there was no cause of action, and later on this application was filed against the heirs and legal representatives of Akshoy Kumar Nandy who had since died. We need not trouble ourselves in this appeal with the question of limitation, because that point has not been pressed before us. The points that have been pressed are two in number. Firstly, as to whether there was any cause of action against the two sons of Akshoy Kumar Nandy, deceased, since it is said that the house was a part of the debuttar estate belonging to the Hindu deity, Sri Radha Govind Jew, and the second point advanced is that the deceased was not a 'workman' as defined in Clause (n) of Sub-section (1) of Section 2 of the said Act. As regards the first point, the position is as follows. The said Akshoy Kumar Nandy, by an indenture dated 6 December 1949, Ex. A in the case, dedicated premises No. 13, Grand Trunk Road, subsequently renumbered as premises No. 7, Grand Trunk Road, Konnagar, to the said deity. Admittedly, the deceased when he met his death was working at premises No. 5, Grand Trunk Road. The Question is whether it has been proved that premises No. 5, Grand Trunk Road, belonged to the deity and not to the appellants. A cumber of municipal tax bills, Exs. B to B. 7, have been filed, which are stated to be the municipal bills in respect of the said premises and it is stated that they show that the premises belonged to the debuttar estate. The tax bills do contain a reference to the figure 5 but it is against a heading which shows that it is a number in form 1. As form 1 is the budget estimate of the municipality, it is not at all clear what this figure represents. Most probably it repreoents the number of the premises and has been put against the wrong heading. However, we agree with the Commissioner that it has not been proved to the satisfaction of the Court that premises No. 6, Grand Trunk Road, Konnagar, is a property which Las been dedicated to the said deity. The appellant Gobinda Dasa Nandy gave evidence and proved Exs. B to B. 7 and said that premises Nos. 5 and 5A, Grand Trunk Road, Konnagar, belonged to the deity, Radha Govind Jew. As I have stated above, these exhibits do not show satisfactorily that premises No. 5 is part of the debuttar estate. With regard to their other properties, he gave the following evidence:
It is a fact that the witness and his brother get Rs. 5.000 to Rs. 5,500 per month as rents for all their houses at Konnagar and Calcutta. It is false to say that on the death of Akshoy Nandy, opposite parties have become the maliks-they are shebaits.
4. The only other evidence which is relevant on this point Is the evidence of S. K. Ghose, the station officer of the Konnagar fire brigade station, who occupies premises No, 5A, Grand Trunk Road, as a tenant since 1966.
5. The Commissioner has held that there was no evidence to show that premises No. 5 belonged to the debuttar estate, and in that finding we have to concur. He has, however, stated in his judgment that there were also 'other tenants' in premises Nos. 5 and 5A, Grand Trunk Road, Konnagar, but there is no evidence to that effect. I do not know where he gets it from. This fact will be relevant on the second point, namely, as to whether the deceased comes within the definition of ' workman ' within the meaning of the expression as used in the said Act. The said expression has been defined in 01. (n) of Sub-sec (1) of Section 2 of the Act, as follows:
(n) 'workman' means 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-
(i) a railway servant as defined In Section 3 of the Indian Railways Act, 1890, not permanently employed in any administrative district or subdivisional office of a railway and not employed in any such capacity as la specified in Son, II; or
(ii) employed on monthly wages not exceeding five hundred rupees, in any capacity as is specified in Sch. 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;
but does not include any person working in the capacity of a member of the armed forces of the Union; and any reference to a workman who had been injured shall, where the workman is dead, Include a reference to his dependants or any of them.
6. It will appear, therefore, that three conditions must be satisfied before a person can be called a 'workman' within the meaning of the definition mentioned above. Firstly, his employment must not (?) be of a casual nature, and secondly, the employment must (?) be for the purposes of the employer's trade or business, and thirdly, the employment must be of the nature mentioned in the said clause. The questions that must be decided are as to whether employment of the deceased was of a casual nature and whether he was being employed in the trade or business of his employer. So far as the third point is concerned. It has not been alleged that the painting of a house is not a kind of employment contemplated in Clause (n). Before I proceed further, the only fact that can be said to have been proved in this case is that Akshoy Kumar Nandy, and after him, has two sons, are the owners of several houses in Konnagar and Calcutta, that they realize about Rs. 5,000 as rent per month in respect of their houses and that the fire brigade, Konnagar, is a tenant of premises No. 5, Grand Trunk Road, Konnagar. It will have to be seen as to what conclusions can be drawn from these facts.
7. The parties have cited several oases before us which I shall now proceed to consider. The first case cited is an unreported judgment of a Division Bench of this Court presided over by Chief Justice Sri Arthur Trevor Harries, Golam Rahaman v. Manager, Gurudwara Buildings Appeal from Original Order No. 39 of 1947, unreported judgment dated 28 June 1048. This was an appeal from a decision of the Commissioner for Workmen's Compensation, rejecting an application by an alleged workman, for compensation under the said Act. The facts in that case were as follows: The petitioner was a mason who was employed by the respondent in the work of constructing a latrine in a three-Storeyed building. While so employed, he Buffered injury and consequently brought a claim for compensation for injury arising out of and in the course of his employment as a mason. The learned Chief Justice Bald as follows:
It is conceded that the appellant was not regularly employed by the respondent. His work was undoubtedly of a casual nature. The respondent was the owner of the property upon which the appellant was working. The appellant was executing either a small addition or a repair and it was whilst doing such work that the accident occurred.
The learned Chief Justice then referred to the definition of 'workman' in the said Act and proceeded to say as follows:
It is urged on behalf of the appellant that the appellant was such a person. He was employed in the construction or repair of a building which was three-storeyed. However, it must be remembered that casual workers who are employed otherwise than for the purpose of the employer's trade or business cannot be regarded as workmen.
8. As I have stated, the appellant's work was clearly of a casual nature and he certainly was not employed for the purpose of his employer's trade or business. He was employed by the employer to repair property which the employer owned. It is not suggested that the employer's trade or business was that of a builder or of a person doing odd jobs to property. The employer in this case was a mere owner of the property casually employing a workman to do an odd job. That appears to me to be the exception contemplated in the definition, namely-
a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business.
9. It was urged that an owner of property carries on a business, if the property is let and a profit made thereon. If a person merely lets a house or two which he owns, he cannot be said to carry on a business of letting houses. The income he derives, he derives from his capacity as the owner of the property and not from carrying on business relating to that property. Where an owner of property executes a small repair, he cannot be Bald to be carrying on the business of repairing or anything of that nature. It is merely an odd job for which he employs casual labour and the workman employed has no right to compensation under the Act.'
This point of view is supported by several English decisions. The first case cited is the case of Bargewell v. Daniel 98 L.T. 257, In that case, the facts were as follows: The plaintiff, Robert Bargewell, was a labourer who earned his living by doing odd jobs for people in the neighbourhood where he lived. The defendant, Mrs. Daniel, was a widow who carried on no business, but personally managed certain properties consisting of eight small cottages, five of them belonged to herself and in one of which she lived, and she was entitled to a moiety of the other three, the other moiety belonged to her Sister's children. She let out the cottages, collected the rents, paid the rates and taxes and had the necessary repairs executed inside and oat. On several occasions the plaintiff had been employed by the defendant to do small repairs to the cottages. While doing the work, a ladder gave way and he fell and broke one of his ribs. He then claimed compensation in respect of the Injuries sustained by him. He was successful before the County Court, in a suit filed under the English Workmen's Compensation Act, 1906. On appeal, however, the decision was upset. Cozens-Hardy, M. R., said as follows:
I think this appeal must be allowed. I desire to express no opinion at all on the first point; but the learned County Court Judge has found here that the work was casual work, and the employment temporary and of a casual nature. Therefore, the plaintiff was not a workman within the Act unless he was employed for the purpose of the employer's trade or business. It is not suggested that the defendant was carrying on a trade. Was she carrying on a business in which the plaintiff could be employed? It seems to me she was not. She was owner of a few houses and Co-owner of some other houses, of which she collected the rents and otherwise managed. This casual labourer was employed to whitewash some of those houses. The learned Judge appears to have treated her as carrying on the business of a house agent. But Section 13 of the Act provides that a workman within the Act does not include a person whose employment is of a casual nature, and who is employed otherwise than for purposes of the employer's trade or business. The intention was that the Act should not apply in such a case to the ordinary owner of property who was not carrying on any trade or business. On that short point it seems to me that this appeal must be allowed.
10. Lord Justice Fletcher Moulton concurred in this decision.
11. The next English case to be considered is a decision of the Court of Appeal in Hill v. Begg (1908) 2 K.B. 802. The facts were as follows: A man who earned his living by doing odd Jobs was employed by the occupier of a private house to clean his windows. He was usually sent for, when the windows required cleaning, and was paid at a daily rate for his work. There was no agreement between the parties of either permanent or periodic employment. While so employed, the man met with his death through an accident. The representatives of the workman claimed compensation under the Workmen's Compensation Act, 1906, and were successful In the County Court. In appeal, this finding was set aside. Cozens-Hardy, M.R., said as follows:
I think that the man's employment was of a casual nature ... No complaint could have been made if any other person had been employed. It was uncertain when any person would be employed, and indeed it is not easy to frame any definition of 'employment of a casual nature' which would not cover this case. A broad distinction is taken in the Act. If a man for the purposes of his trade or business employs another, it matters not that the employment is of a casual nature, such as, for example, that of a dock labourer, and the man so employed is a 'workman' within the meaning of the Act. But an entirely different principle is applicable to the case of what, for the sake of distinction, I may call domestic engagements. I am not prepared to extend the burdens of the Act to householders who simply call in a man, not part of their regular establishment, to do a particular job as and when necessity arises. On these grounds I think the learned Judge was wrong in the view which he took, and that the appeal must be allowed.
12. Lord Justice Buckley, L.J., concurred in this finding.
13. The third English case to be considered is the decision of the House of Lords in Manton v. Cantwell 1920 A.C. 781. In that case the facts were as follows: A farmer, who lived in a small farmhouse on the farm, employed a casual labourer to thatch the roof of the farmhouse. The man fell off the roof and sustained injuries which caused his death. It was found as a fact that the farmers in the district habitually did their own thatching, that is to say, it was a part of their farming work. That being so, It was held that workman was employed for the purposes of the farmer's trade or business and, therefore, entitled to compensation, as having satisfied the definition of 'workman' under the Workmen's Compensation Act, 1906, It therefore turned on the special facts of the case.
14. The last case to be considered la a case which has been cited on behalf of the respondent, the decision of the Division Bench of the Madras High Court in Jeethalal Manekji Sharma v. Saradambal Ammal A.I.R. 1936 Mad. 941. In that case the facts were as follows: The deceased Adimulam alias Kalappan was employed as a bricklayer employed by the appellant. While engaged upon a soaffolding, Kalappan fell and sustained injuries. His widow claimed compensation under the Workmen's Compensation Act. She was awarded compensation by the Commissioner against which decision there was an appeal. The appellant contended that the deceased was employed on a work of a casual nature and otherwise than for the purpose of his trade or business. It was found as a fact that the appellant was a hotel-keeper and out of the profits of his hotel-keeping and out of his other income, he made a business of purchasing houses, reconstructing them and effecting repairs and then letting them out for rent. It was held that this was a part of his business and consequently, the deceased satisfied the definition of 'workman' under the said Act and the representatives were entitled to compensation.
15. Coming now to the facts of the present case, I have already stated that the only evidence is that the appellants had several houses in Konnagar and Calcutta, that they received rent to the extent of Rs. 5,000 or Rs. 5,500 and that the Konnagar fire brigade is a tenant of premises No. 5A, Grand Trunk Road, Konnagar. In my opinion, these facts do not establish that the appellants were carrying on any trade or business in which the deceased was employed as a 'workman.' Reference may be made to the English case Bargewell v. Daniel 98 L.T. 257 (vide supra), where the lady had five cottages from which rent was received and yet it was held that this did not justify the conclusion that she was carrying on any trade or business of letting out houses. On the other hand, in the Madras case it was found as a fact that the appellant did business of purchasing houses, reconstructing them and letting them out. Every case depends on its own facts. On the facts that have been proved in this case, it cannot be concluded that there has been any proof of the fact that the appellants were carrying on any trade or business. It was the kind of casual domestic employment, mentioned in the case discussed above. It is not seriously disputed that the employment was of a casual nature. The evidence is that the deceased was paid Rs. 3 per diem and that he was brought down for this particular work of painting by another mistri. There was no evidence of any prior employment or any agreement for regular employment. It must, therefore, be held that the deceased did not satisfy the definition of a workman 'under Clause (n) of Sub-section (1) of Section 2 of the said Act. That being so, the Commissioner was in error in awarding compensation and the appeal must be allowed and the order of the Commissioner must be set aside. The application under the Workmen's Compensation Act is dismissed.
16. There will be no order as to costs.
17. The balance of the money deposited will be returned.
A.K. Mukherjee, J.
18. I agree.