FA/488/2003 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 488 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== SIDIKBHAI ALIBHAI Versus HALAR ENGINEER THRO' LILADHAR KESHUBHAI VANIYA ====================================== Appearance : MR NIRAV C THAKKAR for Appellant. MR JV JAPEE for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 12/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant-original applicant has challenged judgment and order dated 9th July 2001 passed by Ex-officio Commissioner of Workmen Compensation and Labour Court Judge, Jamnagar in Workmen Compensation (Non Fatal) Case No.229/1993, FA/488/2003 2/4 JUDGMENT whereby the claim of the appellant was dismissed. 2. The case of the original applicant is as under: 3. The original applicant – appellant herein was working as a labourer with the respondent. On 13-6-1992, son of owner of respondent firm has taken him for labour work with three other labourers. While doing the work, the appellant herein has suffered injury and three fingers of his leg were fractured. The appellant had taken treatment in Irvin Hospital. Inspite of that permanent disability has remained in the body of the appellant and, therefore, he had given notice to the respondent to pay compensation. However, since said amount was not paid, the appellant had filed aforesaid Compensation Case with a prayer to grant Rs.1,03,990/- as compensation. 4. Said claim of the workmen was resisted by the respondent by filing reply. It is stated by the respondent that the appellant has not gone for work with son of owner of respondent firm. It is also denied that the appellant has sustained injury during the course of employment. It is stated that if the workmen has sustained injuries while doing work of any other firm, for that the respondent cannot be held liable. It is also stated that the appellant is doing same work even after accident and, therefore, it is prayed that the claim of the appellant may be dismissed. 5. After considering the evidence on record, Workmen Compensation Commissioner dismissed the application of the appellant. Being aggrieved by it, the appellant has filed present appeal. 6. Learned advocate for the appellant has raised contention that the Workmen Compensation Commissioner committed an error by not FA/488/2003 3/4 JUDGMENT considering that the appellant was a 'workman' as per the provisions of Workmen's Compensation Act, 1923. He also submitted that it is the duty of the respondent to prove that the appellant is not a workman of the respondent. He also submitted that since the appellant has sustained injuries during the course of employment, compensation is required to be paid to the appellant. He, therefore, prayed that this appeal may be allowed by setting aside order of the Workmen Compensation Commissioner. 7. Learned counsel for the respondent submitted that the appellant is not 'workmen' as per the definition given in Workmen Compensation Act. He also submitted that even otherwise, the appellant has not sustained any injury during the course of employment. He also submitted that since there is no decrease in earning capacity of the appellant and since the appellant is continuing to do the same work, award of the the Workmen Compensation Commissioner may not be interfered with. In view of above submissions, he prayed that this appeal may be dismissed. 8. I have considered the submissions made on behalf of both the side and also gone through the judgment of the trial Court and other relevant documents. At the time of deciding the issue, the Workmen Compensation Commissioner has considered the definition of 'workman' given under the Act and, as per the same, the appellant cannot be said to be 'workman'. Therefore, it is rightly held that the appellant is not entitled to any compensation under the Workmen Compensation Act. I am in complete agreement with the reasonings given and finding arrived at by the Workmen Compensation Commissioner while passing impugned order. No other evidence is shown to me to take a contrary view and this appeal is devoid of any merits. Therefore, I do not find any FA/488/2003 4/4 JUDGMENT reason to interfere with the impugned judgment. 9. For the reasons stated herein above, the appeal deserves to be dismissed and the same is dismissed with no order as to costs. (K.S.Jhaveri, J.) *malek