fa487.94 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 487 OF 1994 Dhrupadabai w/o Bapu Survase died through L.Rs. 1. Baburao s/o Kundalik Survase age 61 years, occ. agril r/o Chandeshwar, Tq. & Dist. Latur. 2. Rukmin Bali Vanjare age 40 years, occ. agril r/o as above. 3. Limbraj Baburao Survase age 35 years, occ. agril r/o as above. 4. Balaji Baburao Survase age 27 years, occ. agril r/o as above. .. APPELLANTS VERSUS Gangabai w/o Govind Sapate age 58 years, occ. agriculture r/o Chandeshwar, Tq. & Dist. Latur. .. RESPONDENT Mr. S.V. Chandole, advocate holding for Mr. V.G. Sakolkar, advocate for the appellants. ===== fa487.94 2 CORAM : A.V. POTDAR DATE : 29 th NOVEMBER, 2011 ORAL JUDGMENT : 1. Present appeal is raising exception to the judgment and award passed by the Commissioner for Workmen’s Compensation and the Judge, Labour Court, Latur in WCA No. 6/1992. 2. Heard learned counsel for the appellant. Learned counsel for respondents is absent. 3. Perusal of record shows that the appellant / petitioner has filed an application under section 22 of the Workmen’s Compensation Act before the Judge, Labour Court / Commissioner under the Workmen’s Compensation Act, Latur, claiming compensation against respondents. It is the contention of the petitioner / appellant that on 12-10-1991 she was engaged to work as a labourer on thresher machine in the field of respondent. While she was working on the said machine, the machine fell on her person which resulted in sustaining fracture to her right wrist and also caused other injuries to her resulting in permanent disablement. Petitioner / appellant further claims that she was earning Rs. 15/- per day at the time of fa487.94 3 incident. At the time of occurrence of the incident, her age was 40 years. It is the contention of the appellant that considering her income and her age, she is entitled for compensation to the tune of Rs. 50,000/- from respondent. Perusal of papers received from the Court below shows that on summons respondent appeared before the lower Court and contested the claim of appellant on the ground that appellant was not engaged on the thresher machine installed at her field. It is also denied that appellant sustained injuries while she was working on the thresher machine. It is alleged that the appellant was working in her house as maid servant and at the time of incident she alongwith her husband Babu and one Pandu Chavan had been to the field of respondent to claim their share in the new crop as they are customary workers who are locally known as ‘Balutedar’. Appellant had been to the field of the respondent to collect customary share in the new crop. At that time, she stood near the thresher machine and as she was habitual smoker, while she was smoking bidi, she lost her control and because of that she dashed against the thresher machine and sustained injuries. 4. On the basis of the pleadings of the parties, lower Court was pleased to frame issues including the issue whether the appellant met with an fa487.94 4 accident out of and during the course of employment as alleged and, other issues. The parties were put to the trial. It appears that during trial appellant examined Dr. Siddheshwar Sangral Patil to explain the injuries sustained by her so also she examined herself, her husband and Pandu Chavan, in support of her claim. As against this, respondent examined herself and one Devidas Salunke who was present on the spot at the time of alleged incident. Considering the evidence laid by the parties, learned trial Court held that as the appellant failed to establish that she is a workman within the ambit of definition of ‘workman’ under the Workmen’s Compensation Act and also failed to establish that during the course of her employment the alleged incident occurred, she is not entitled to any compensation and thereby dismissed the claim petition of the appellant which judgment and award is impugned in the present appeal. 5. During the course of submissions across the bar, learned counsel for the appellant tried to urge that the incident in question is not disputed by the respondent. According to the defence taken, particularly in paragraph No. 7 of the written statement filed by respondent, appellant was working as a maid servant at her house and she had come to the filed to collect her share in the new crop. Considering this aspect, case of the appellant comes fa487.94 5 under the definition of workman as defined under the provisions of Workmen’s Compensation Act. In the light of this, it is prayed to allowed the appeal by setting aside the judgment and award impugned. 6. Considering the submissions across the bar, points require for consideration in this appeal are : 1. Whether the appellant is a workman under the definition of section 2(1)(n) r/w list given in Schedule II of the Workmen’s Compensation Act, 1923 ? 2. If the finding of point No. 1 is to be recorded in the negative, what is the order ? 7. The term ‘workman’ under section 2(1)(n) of the Workmen’s Compensation Act, 1923 which reads a follows : “workman” means any person [ * * * ] who is - (i) a railway servant as defined in [clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or [ (i-a) (a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, fa487.94 6 cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or ] (ii) employed [ * * * ] [ * * * ] 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; 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 has been injured shall, where the workman is dead, include a reference to his dependants or any of them. . In Schedule II r/w section 2(1)(n) of the Workmen’s Compensation Act, 1923, list of 49 types of persons who can be termed as workman within the meaning of section 2(1)(n) of the Workmen’s Compensation Act is given. In the said list, item no. (xlv) reads thus : (xlv) employed in mechanised harvesting and threshing operations; . In the light of definition of workman as provided under section 2(1)(n) fa487.94 7 r/w 49 categories of persons given in Schedule II of the Act, it is necessary to consider the evidence of the appellant, her husband and Pandu Chavan that appellant at the time of alleged incident was engaged as a labourer on the field of respondent. Perusal of evidence of these three witnesses nowhere indicates that since how many days services of appellant, her husband and Pandu were engaged by respondent. There is also no consistency about fixation of daily wages by respondent. Apart from this, in their respective cross examination, all the three witnesses have admitted that they are customary drum beaters. This evidence which is discarded by the Court below on the ground that evidence of these witnesses nowhere shows that services of Dropadabai were engaged by respondent to work as a labourer on the threshing machine to bring her case within the ambit Schedule II r/w section 2(1)(n) of the Workmen’s Compensation Act, 1923. In the light of this evidence, there is no hesitation to record finding on point No. 1 in the negative as the case of the appellant does not come within the ambit of definition of workman under section 2(1)(n) of the Workmen’s Compensation Act r/w list of persons given in Schedule II of the Act. Thus, if the finding on point No. 1 is to be recorded in the negative, consequence follows that the appellant is not entitled to claim compensation under the provisions of Workmen’s Compensation Act, 1923. In the light of this, I do not fa487.94 8 find any reason to interfere in the judgment and award passed by the Judge, Labour Court & Commissioner under the Workmen’s Compensation Act, while rejecting WCA No. 6/1992. in the result, as appeal is sans any merit, stands dismissed. ( A.V. POTDAR ) JUDGE dyb