S.B Saundatti v. Biyamma

Somnath Iyer, J.:— This is an appeal under Section 30 of the Workmen's Compensation Act from an order made by the Commissioner for Workmen's Compensation, Belgaum, awarding to the dependents of a certain Dastagir, a sum of Rs. 2,100 by way of compensation under Section 3 of the Act. Dastagir; according to the allegations of the respondents, was a cleaner of the appellant and met with an accident on May 31, 1954, in consequence of which he died on that date. The application for compensation was resisted on many grounds. The appellant denied that he was the employer of Dastagir and contended that Dastagir was the employee of another person. He denied that Dastagir met with an accident during the course of his employment. While the respondents alleged that Dastagir was-drawing a salary of Rs. 60 a month, the appellant alleged that the salary was only Rs. 30. All these contentions having been overruled by the Commissioner who was of the view that Dastagir was an employee of the appellant drawing a salary of Rs. 60 besides being entitled to some batta and that Dastagir met with his death in the Course of his employment, by the adoption of the rates specified in Schedule IV to the Act, the Commissioner awarded to the respondents a sum of Rs. 2,100 by way of compensation.

2. In this appeal, Mr. Bhatta has made many submissions before us.

3. He first contended that a cleaner of a truck is no workman at all for the purpose of the Act and the argument maintained was that since a cleaner is not a person falling within Schedule II to the Act, Dastagir could not have been regarded as a workman for the purpose of the Act. The complete answer to this is clause 1 of Schedule II which takes within its ambit a person employed otherwise than in a clerical capacity in connection with the operation or maintenance of a vehicle propelled by steam or electricity or in connection with the loading or unloading of any such vehicle. This clause is comprehensive enough to take within it a person employed as a cleaner in respect of a vehicle such as a truck.

4. The next argument which was maintained before us was that the truck bearing No. 2168 which was the vehicle in connection with which Dastagir was employed was not the appellant's vehicle but was the vehicle belonging to one Limaye. The finding of the Commissioner was that the vehicle was the appellant's vehicle and that being a finding on a pure question of fact and since Section 30 of the Workmen's Compensation Act authorises an appeal only if a substantial question of law is involved, we are precluded from considering the correctness of the submission made by Mr. Bhatta that Limaye was the owner of the vehicle and not the appellant. It should also be pointed out that the contention raised by the appellant that he was not the owner of the vehicle was an extremely optimistic contention since in his own cross-examination the appellant admitted in more than one place that the bills which he signed included bills relating to truck bearing No. 2168. What is even of greater significance is that the appellant gave a disingenuous answer in his cross-examination that he did not remember if he took the truck No. 2168 from the police custody after the accident.

5. We were next asked to say that when the truck met with an accident Dastagir was not driving it in the course of employment. But, on this question, the finding of the Commissioner was against the appellant, and that finding being a question of fact, is not open to discussion in this Court.

6. It was next submitted to us that even if Dastagir was at one stage an employee of the appellant, he ceased to be such employee by reason of the fact that Dastagir was handed over along with the truck to a Company called the New United Construction and Engineering Company Ltd., which was opponent No. 3 before the Commissioner. The Company produced a statement before the Commissioner that Dastagir never became its employee and all that happened under the agreement between the appellant and the Company was that the truck was handed over on hire by the appellant to the Company and that Dastagir who was the cleaner under the appellant in the employment of the appellant was directed by the appellant to work as a cleaner when the truck was used for the purpose of the Company. The argument placed before us by Mr. Bhatta was that under this agreement the service of Dastagir was temporarily lent to the Company and that by reason of the service having been lent in that way, the employment between the appellant and Dastagir came to an end and Dastagir became an employee of the Company.

7. It is not necessary for us, in my opinion, in this case to discuss the question whether a person whose services are temporarily lent by the principal employer to a subsidiary employer becomes the exclusive employee of the subsidiary employer and whether the employment between the principal employer and the workman comes to an end. We are relieved, in my opinion, from expressing any opinion on this question since the appellant himself made an admission even in his examination-in-chief that he was “using” the truck on hire for the Company. This admission made by the appellant fully corroborates the statement made by the Company before the Commissioner that Dastagir never became the employee of the Company, but that the effect of the agreement between the appellant and the Company was that the appellant agreed to do the transport work with the aid of his own vehicle for the use of the Company.

8. There is, thus, in my opinion, no substance in the argument that Dastagir was no longer the employee of the appellant when he met with the accident and died in consequence thereof.

9. It was lastly submitted to us that the amount of Rs. 2,100 awarded as compensation was excessive. It was said that even the evidence given by the widow of Dastagir was that Dastagir's salary was Rs. 60 a month and that that being so, Schedule IV did not authorise the award of compensation in excess of Rs. 1,800 to the dependents of Dastagir. But what this argument overlooks is that as found by the Commissioner a sum of Rs. 60 stated by the widow of Dastagir was only the salary, and that Dastagir was also entitled to receive from the appellant a certain sum of money towards batta. The Commissioner was, therefore, of the view that what Dastagir was receiving by way of wages as defined by the Act which includes privileges and benefits such as batta, was somewhere between Rs. 60 and Rs. 65 a month. Schedule IV makes it clear that if the wages exceed Rs. 60 a month, compensation claimable is Rs. 2,100, and, that is what exactly the Commissioner awarded by way of compensation.

10. This appeal is dismissed with costs.

Kalagate, J.:— I agree.