IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F . A O . N o . 2 0 9 o f 1 9 8 4 Date of Decision : November 18, 2008 Yasin and another .....Appellants Versus Shri Rahim Khan .....Respondent CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Gaurav Goel, Advocate for Mr. Jai Vir Yadav, Advocate for the appellants. None for the respondent. T.P.S. MANN, J. Petition filed by the appellants for compensation on account of death of Fajru, who had been working as a labourer on a tractor of the respondent, was dismissed by the learned Commissioner under the Workmen’s Compensation Act, 1923, Gurgaon on June 29, 1983. Aggrieved of the same, the claimants filed the present appeal under Section 30 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’). F.AO. No. 209 of 1984 -2- The case of the claimants/appellants was that their son Fajru was employed as a labourer by the respondent on monthly wages of Rs. 300/- per month. On 19.9.1981, while working as such on tractor No. HRG-9354 belonging to the respondent, he met with a fatal accident. The claimants requested the respondent to pay them the amount of compensation but to no avail. Even a legal notice dated 18.12.1981 was served upon the respondent. Pleading that they were entitled to compensation to the tune of Rs 18,000/-, the appellants filed the claim petition. The case of the respondent was that there did not exist any relationship of employer and employee between him and Fajru deceased, therefore, the Act was not applicable upon him. On the pleadings of the parties, learned Commissioner framed the following issues :- 1. Whether the claimant (sic) was not an employee of the respondent ? OPR. 2. Whether the accident has not occurred arising out of and in the course of employment of the respondent ? OPR. 3. Relief. F.AO. No. 209 of 1984 -3- In support of their case, the appellants examined Yasin- claimant AW1, Sumer Khan AW2, Rajdar Khan AW3 and Dev Raj, Assistant Naib Moharrir AW4. On the other hand, the respondent examined Rahim Khan RW1, Rehman RW2 and Daya Nand RW3. Learned Commissioner held that deceased Fajru did not come under the definition of 'workman' as contained in Section 2(n) as well as Schedule-II of the Act. On the basis of the said finding, the claim petition was dismissed. However, it was also held that the deceased left behind Smt. Zarina as his widow, who was alive, but had not joined in the claim petition and in view of Section 2 of the Act, only the widow was entitled for the grant of compensation, at the first instance, and the claimants, who were the parents of the deceased had no legal right to file the claim petition. The main issue in the present appeal is as to whether Fajru- deceased fell within the definition of 'workman' as contained in Section 2(n) of the Act or not. As is mentioned in the testimony of Sumer Khan AW2, the deceased was working on the tractor-trolley of the respondent for bringing stones to Kamera Bandh. While the stones were being unloaded from the trolley, Fajru came under the loaded trolley and died. To the same effect was the testimony of Rajdar Khan AW3. On the other hand, F.AO. No. 209 of 1984 -4- Rahim Khan RW1 denied the employment of Fajru with him or that said Fajru had died while working on his tractor. He claimed that it was his own son who used to drive his tractor and no other person was employed by them. Rehman RW2, in his statement, stated that Fajru was never employed as a tractor driver by the respondent. In fact, he used to graze his goats. Daya Nand RW3 also corroborated the version of Rehman RW2. However, he did state that Fajru died when suddenly, the trolley overturned upon him. It, thus, stands established that Fajru died on account of overturning of the trolley and his coming under it. However, there is no evidence that the employment of Fajru was for the purposes of bringing stones and not for any farming purpose. His act of being present with the tractor-trolley of the stones was only of a casual nature. Such an employment of casual nature and, that too, for purpose other than the farming operation of the respondent, would not make him a 'workman' as required by Section 2(n) as well as Schedule-II of the Act. Learned counsel for the appellant submitted that even a person employed casually would be deemed to be a workman. Reliance in this regard has been placed upon Hirjibhai Lakhamsibhai v. Damodar, AIR 1957 Madhya Pradesh 49. In the said judgment, the person, who was casually employed, was one whose employment was for the purposes of the employer’s trade or business. He was undertaking construction of the godown for storing grain and the said construction was held to be vitally connected with the business of a grain F.AO. No. 209 of 1984 -5- merchant. On the other hand, Fajru-deceased was employed by the respondent for agricultural operations only. The carrying of stones by loading them on a trolley was not connected with business/operations normally carried out by the respondent as an agriculturist. Once it is held that Fajru was not a workman, it was immaterial if his widow had not joined in the claim application, along with her in-laws to claim compensation. In view of the above, there is no merit in the present appeal, which is, accordingly, dismissed. ( T.P.S. MANN ) November 18, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO