P I (PLP)

O'SULLIVAN, J.‑

This is an appeal under section 33 Workmen's Compensation Act, against an order of Commissioner under the Workmen's Compensation Act, Karachi, awarding a sum, of Rs 3,000 as compensation to the mother and daughter of a deceased workman Jumo, son of Ambo. The appellants are a firm of Stevedores carrying on business at Karachi and Jumo was in their employment as a tindal, when on 12th February, 1945, he was injured while engaged in loading a ship. He was removed to the Civil Hospital and under X‑Ray examination was found to have sustained, among other injuries, a fracture of tile spinal column. He was paralysed and had he survived would in the opinion of the Medical Officer, Dr. Sobhraj, have been a cripple for life. He voluntarily left the hospital on 20th February 1945, and he died in his own have on 4th March 1945. Asibai the mother of Jumo, and Fatma, his daughter made an application under the Act claiming Rs.3,500 as compensation. This was contested by the appellants on the ground that Juino's death was not caused by the accident, but was mainly attributable to his having left the hospital unauthorised and having failed to take proper medical treatment. The amount claimed was disputed. The Commissioner found that the death of Jumo was the direct result of the injury sustained by him while working for the appellants on 12th February 1945, and that the monthly wages of deceased were Rs. 95‑5‑

0. On this basis, he awarded Rs. 3,000 as compensation. The only point raised in this appeal is as to whether the monthly wages of Jumo have been correctly computed. The Commissioner found that Jumo's monthly wages fell to be computed under clause (b) of section 5 of the Act, since his service was of a casual nature. The evidence established that although Jumo was a tindal in receipt of a monthly retainer of Rs. 8 and an allowance of Rs. 7‑8‑U from the appellants, he was only employed by them as such for an average of eight days each month, his wages being that of a day labourer to wit. Rs. 2‑3 0 per day with an additional rupee as tindal's fee. It was found by the Commissioner that tindals such as Jumo were permitted to work for other stevedores when their sevices were not required by their regular employers. Referring to‑certain of the evidence in this connection, the Commissioner said: The original stand of the learned advocate of, the opponent was that tindal is paid servant of the Dubashes and be cannot work as labourer with the same Dubashes or the other Dubashes an an ordinary labourer The stand taken by the learned advocate is falsified by the supervisor of the opponents, Mr. Jamshed who has been in charge of the case and has been attending Court. He says that tindals work with the labours and do the same kind of work. They are not concerned what they do, when they do not employ them. He also admits that they can work' as ordinary labourer with other Dubashes or even under the same Dubashes under other tindals. He has even given instances when the deceased though a tindal has worked as ordinary labourer under Habibullah and Ponjaji, the two tindals of the opponent who have been examined in this matter and have denied the fact Mr. Jamshed, a Dubash, is supported in this by the Registrar and by the evidence of Karo Makaji, a tindal of tire opponent since 25 years. He also says that tindals car, work under the same Dubashes or different Dubashes, wherever there is work available. No doubt Tindats do get retainers, but that does not prevent them from seeking employment elsewhere, and the only penalty for their absence is that they lose their turn. This retainer is paid to have their goodwill to secure labour. Thus it is clear that the deceased Jumo used to work as ordi nary labourer as well and was a casual labourer. There was some attempt by Mr. Choithram to question these findings of fact, but we are not prepared to take a different view of evidence from that arrived at by the Commissioner. With regard to the number of working days upon which these dock labourers are on an average employed in a month, the Com missioner came to the conclusion that the evidence adduced on behalf of the respondents that it was 27 to 28 days was probably correct, but he decided that he should adhere to settled practice and fix the number of days as

23. He said: "I would like to adopt a more modest course and depend upon the practice of this Court. In such cases, the average of 23 days has been allowed with full overtime. In that case the average ordinary wages would be Rs. 61‑13‑

0. With the tindalage, the retainer and allowance, the wages would be Rs. 95‑5‑0, and the compensation would be Rs. 3,

000. Mr. Choithram concedes that clause (b) of section 5 applies, but contends that the term's of clause (b) do not permit of the wages of a workman being taken into consideration from a source other than from the employer in whose service he was at the time of the accident. And, therefore, according to Mr. Choithram, the wages of Jumo are to be computed on the basis of his eight day's employment per mensem as a tindal with the appellants. Jumo had admittedly been in the service of the appellants as tindal for nine months prior to the accident, and it was Mr. Choithram's contention that had he been in such employ for 12 months, he would have come within clause (b) of section

5. Developing his argument, Mr. Choithram pointed out that there were certain tindals who had been in appellant's employ for over twelve month, and he said that the average monthly wages these tindals received from the appellants during the months preceding the accident based on eight days work during the month was to be taken as the basis for the computation of Jumo's monthly wages lie further said that assuming there had been no such tindals. employed by the appellants during the relevant twelve months, the wages of Jumb would have to be assessed under the second part of clause (.b), on what was earned "by a workman employed on similar work in the same locality," and these words according to Mr. Choithram carry the implication that the employment envisaged is under one employer. Mr. Choitbram relied on Cue v. Port of London Authority (1914) 83 L J K B 1445, as explaining certain similar provision in Sch. I, clause 2 (a) Workmen's Compensation Act, 1906. Before referring to the English decisions cited from the Bar, it is necessary to scrutinize the Indian enactment with which we are here concerned the Workmen's Compensation Act of. 1923. It is the scheme of the Act, vide section 4 and Sch. IV, that the/amount of compensation is to be based in the case of an adult, upon his monthly wages, and section 5 provides for the method of calculating such monthly wages. Clause (a) of section 5 obviously only covers a case where there has been continuous employment 'under the same master during the period of twelve months preceding the accident. That is to say, there must have been a continuous employment during which the relation of' master and servant substantially existed between the employer and the servant. Schedule I clause 1 (a) (i) English Act contains the words "in the employment of the same employer during the three years next preceding the injury word "continuously" being omitted. Nevertheless such employ ment in the English Act has been interpreted in numerous English decisions as meaning continuous Actual employment under the same employer. We refer in this connection to Gill v. Foricscuea and Sons Ltd. (1913) 6 B W.C C 577; and Twindal v. London and North Eastern Railway Co. (1925) 18 B W C C 218, (482): Whereas in this case the workman was employed for a few days with one employer and when the particular piece of work on which he was engaged the loading of a ship was completed, he was engaged by another employer, his service would be of a casual nature not covered by clause (a) of section 5 although he might have been in receipt of a retainer by a particular set of employers and have been periodically employed by them over the whole of the preceding year. Mr. Choithram laid stress on the explanation to the, section which reads: A period of service shall, for the purposes of this section be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days." This does not and cannot operate to convert what is in its nature casual service into continuous employment under the same master. It operates merely to bring within a period of continuous employer any absence from work not exceeding fourteen days, and does not lay down as 'continuous' a service in which the workman has worked during intervals under another employer. We refer in this connection to Bengal Burma Steam Navigation Co. v. Rahmana, A I R 1932 Rang. 141: We are unable to accept Mr. Choithram's contention, therefore, that had Jurno been in the employment of the appellants as a tindal for twelve months and not nine as in the case, his wages would have had to be computed under clause (a). Incidentally Mr. Choithram was at a loss to explain why, if his contention in this respect were correct. Jumo's case should not come under clause (c) rather than clause (b). If his nine months period of service were to be regarded as continuous in the sense set out above, he would clearly fall under clause (c) as being a workman whose continuous service under this same employer exceeded one month. Turning now to clause (e), it seems clear that the words "last continuous period of service immediately preceding the accident" also mean continuous act of employment under the same master. It is to be emphasised that computation of monthly wages under clause (c) is on the basis of thirty times the total wages earned during the last continuous period of service divided by the number of days comprising such period. Clause (b) requires to be read in the light of what has been said above regarding clauses (a) and (c). It covers cases. "where the whole of the continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay compensation was less than one month." These words obviously cover cases where the workman was con tinuously employed under one master, but whose service with the master was less than one month, also cases of casual employees men who were liable to be employed front day to day by different employers. In order, however, to arrive at a proper fair and consistent computation of monthly wages alternative methods of computation are provided for in clause (b). The first is covered by the words: "The monthly wages of the workman shall be deemed to be the average monthly amount which during the 'twelve months immediately preceding the accident was being earned by a workman employed on the same work by the same employer." These words are not as explicit as they might be. The words "continuous ' and service which find 'place in clauses (a) and (c) have both been omitted but nevertheless it appears to us that the workman upon whose wages the computation is to be based as contemplated by the first part of clause (b) is not a casual labourer but one between whom and his employer there existed for a continuous period of twelve months the relationship of master and servant; one who might for the purpose of brevity be referred to as a regular employee; one who worked under the same master and whose own monthly wages‑would be computable under clause (a). Since the tindals and/or workmen in the appellants employment would not, for already given, come under the category of such regular employees this 1st method of computation would not apply, and we must, therefore, in computing jurno's monthly .wages, pass on by virtue of the words "or if there is no such workman so employed" to the second method provided in clause (b) which with the context will read: "The monthly wages of the workman shall be deemed to be .r the average monthly amount which during the twelve month immediately preceding the accident was being earned by a workman employed on similar work in the same locality." These words manifestly include wages from any source and any employer. If it were not so, the greatest absurdity and unfair ness might result in the case of a casual labourer who 'for instance might have worked for twenty‑two days with one employer and then been killed on the twenty‑third day in the service of another emp loyer. If his average monthly wages were to be taken as only what lie earned from the employer in whose service he was at the time of the accident, his average monthly wages would be one day's wages, although he was employed for twenty‑three days in a month. Read in the manner set out above, however, the several clauses of section 5 assume reasonable and consistent aspect, and permit of a workman being remunerated on the basis of what he was on an average able to earn irrespective of whether he was employed on a causal or regular basis. The only Indian decision which appears to have any bearing on the present case is Alimuhainmad v. Shankar A I R 1946 Bom. 169 and it affords some support to the view we take of section

5. The English cases cited from the Bar relate to clauses 1 and 2 of Sch. 1, Workmen's Compensation Act of 1906, between which and the Indian Enactment there are material differences. In Perry v. Wright (1908) 1 K B 441 ; Cozens‑Hardy, M. R., referring to the general scheme' of the English Act, described clauses I and 2 of Sch. I as " two very difficult and obscure sections." He pointed out that the language of clauses (a) and (b) was repetition of section 1 of Sch. I to the earlier Act of 1897 under which the amount of compensation was described in language the effect of which was to many cases to make the workmen's compensation almost illusory. Claus 2 was, therefore, introduced to remedy this state of affairs, and it " purports to lay down certain rules for the guidance of those whose duty it is to assess compen sation." But though the Legislature obviously intended to correct hardship " the manner in which the result has been received is somewhat strange." The learned Master of the Rolls 'then went on to say: " Now it is obvious that section 1, construed by itself, deals with the ordinary case of a workman employed by only one employer, and for a sufficient period to enable his earnings or his average earnings to be computed with mathematical ac curacy. It does not contempt concurrent contracts of service, or employment which in its nature is casual. For some reason which is not obvious, three years is the standard period in case o death, whereas twelve months is the standard period in case of partial incapacity, but in either case precision is made for taking an average for any less period. The actual history of the workman furnishes adequate material in ordinary circumstances. Section 2 contemplates circumstances which, though not uncommon, may be deemed out of the ordinary course. It lays down curtain rules which the be observed wherever `earnings' or average weekly earnings' occur in the schedule. The dominant principle is to be found in the first sentence of clause (a) average weekly earnings ball be computed in such manner as is lest calculated to give 'the rate per week at which the work man as being remunerated. "This can scarcely be confined to one date, namely, the date oil the accident ; for under section 1 (a) and (b), it is clear that other dates cannot be disregarded. Then follows a proviso which contemplates that there may be cases in which computation is impracticable. No mandatory words are there used ; the phrase is simply regard may be had. The sentence is not grammatical, but I think the meaning is this Where you cannot compute you 'must estimate as best as you can, the rate per week at which the workman was being remunerated, and to assist you in making an estimate you may have regard to analogous cases." The words last set out above in regard to making an estimate based on analogous cases are emphasised. It has already been pointed out that the cases of casual and regular employees are not analogous. In Cue v. Port of London Authority (1914) 83 L J K B 1445 it had been contended in the Court of Appeal that on the language of clause 2 (a), it is the actual average earnings of the workman, no matter under bow many different employers that have to be ascertained, and that it is possible to do that without reference to the proviso to the clause. This argument was not accepted by any of the three learned judges who heard the appeal. For instance, Pickford, L. J. said " But the respondent seeks to uphold the amount of the award of compensation on another ground, namely, this that the man being employed casually, and it being possible to ascertain for the twelve months preceding the accident what his actual average weekly earnings were, that amount is to be taken as the amount of his average weekly earnings, that is to say that inas much as taking the whole time that he has worked during the previous twelve months he has averaged something like 45s. a week that and that. alone is the thing which is to be looked at in arriving at his average weekly earnings. That seems to me to proceed upon an erroneous construction of the opening words of Sch. I clause 2 (a). It proceeds upon the construction that in the case of casual employment, the average amount which has earned under any number of employees is to be regarded as his average weekly earnings for the purpose of that clause. I think that is an erroneous construction. I think 'average weekly earn ings ' in clause 2 of the Schedule must be read as having the same meaning as average weekly earnings' in clause of the Schedule, and that it means average weekly earnings under the same employer. It was conceded y. counsel for the respondent that, apart from authority, any body who had regard to grammar and common sense would read it in bat way ; but he said there were authorities which obliged us to read it in a different way." There is no doubt that in a general way the decision in Cue's case lends some support to Mr. Choithram's argument, but as has been stated above, the decision turned to a considerable extent on the interpretation of the opening words of Sch. I clause 2 (a), English Act, which are by no means identical with anything to be found in section 5 of the Indian Act. I Moreover, in Cue's case (1), the first part of the, proviso‑that referring to the earnings of a person employed " in the same grade, at the same work, by the same employer was under consideration. There is nothing in Cue's case, to suggest that the second part of the proviso that relating to a person employed in the same class or employment in the same district‑must be read as referring to employment under one employer. It is, in any event, difficult to reconcile some of the observa tions in Cue's case, with a reasonable interpretation of Sch. I, English Act, or with the views expressed in other cases. In Twindale v. London and North Eastern Railway Co., cited above, Cue's case, was considered by the Court of Appeal and doubted. I would refer to the following observation of Atkin, L. J. : "I agree. The matter has arisen upon the paragraphs of Sch. I, to the Act of 1906, that have given difficulty before, and I have no doubt will cause difficulty again as to the computation of weekly earnings, and this particular difficulty arises in the case of a man who is employed by the London and North Eastern Railway Co., as the dock authority. He was in fact, a casual dock labourer, he sometimes worked for respondents, and he sometimes worked for two or three other persons or firm who had business to give to men who worked in the capacity of the applicant. He had also been from time to time employed by the respondents over the whole of the preceding years. He had not worked every week for them, but in most of the weeks he had on one day or another, sometimes one, sometime, two, sometimes three, sometimes four or five or some times apparently six days of the week worked for them but on each occasion the work was the ordinary employment of a casual labourer that is to say it was apparently a daily job, and the only employment was for that particular job. There was to my mind no continuous employ ment of the man at all; and he did not work under any contract of service other than a contract of service to perform the parti cular day for which he was engaged. He is injured and then the question arises as to how his average weekly earnings are to the calculated and upon that we were told that there was the decision of Cue v. Port of London Authority, which prevented the learned Country Court judge from taking into account any other earnings at all other than the earnings which in fact be had earned from the particular employer who was the respondent to the application. I agree that there are statements in that case by some of the judges which seem to point in that direction. On the other hand there are a series of cases which appear to me to be quite inconsistent with that view". For reasons already sufficiently stated, there is‑nothing in Cue's case which leads us to a different view of, section

5. Indian Workmen's Compensation Act of 1923 from that indicated above. We consider that the Commissioner was correct in his findings of fact, and that he has correctly applied the law to, those findings. The appeal is dismissed with costs. JUDGMENT TYABJI. C. J.‑

I agree. The only question before us is whe ther the method adopted by the Commissioner in calculating the monthly wages of the workman, jumo, was in accordance with section 5, Workmen's Compensation Act, VIII of 1923. When Jumo met with the accident, as a result of which he died, he was actually working as a tindal employed by the appellants. He had been the appellant's tindal for nine months before the accident. This, as the evidence shop only meant that during that period he was bound to serve the appelants as a tindal, i.e., the supplier of labour, whenever called upon to do so, and not that he Was Conti nuously employed by the appellants during that period. He had in fact been required by the appellants to work as a tindal, on the average, for about eight days in every month. The appellants had to pay jumo a fixed monthly retainer and allowance, and, in addi tion, his wages as an ordinary workman with a certain addition, called tindal age, for every day on which he actually worked as a tindal. The learned Commissioner found that a tindal like Jumo on the average worked 23 days in every month, under different employers, sometimes as a tindal, sometimes as ant ordinary work. man, and thus earned Rs. 95‑5‑0 per month, and he computed the compensation due on this basis. Mr. Choithram for the appellants argued that the learned Commissioner erred in adopting this method. He argued that for the purposes of the Act the monthly wages of jumo had to be computed as being restricted to the average monthly amount which Jumo earned from the appellants, which, Mr. Choithram argued, would be the retainer and allowance plus the wages which Jumo got for the eight days, including tindalage. Mr. Choithram con tended that the general scheme under which compensation was pay. able by an employer under the Act and the words of section 5 require us to accept this contention. In my view, Mr. Choithram has not been able to point to anything which can in any manner be regarded as supporting his argument. The method to be adopted in calculating the monthly wages of the workman‑in question is stated in section

5. Clauses (e) and (a) of this section apply to cases where the workman was in the service of the employer during a continuous period of a month or more before the accident. These clauses admittedly and obviously did not, therefore, apply in the present case. As Jumo was only retained as a tindal, be could not be said to be continuously in the service of the appellants for the entire period during which he was retained as a tindal. On the facts of this case, it could not be asserted that Jumo was continuously employed by the appel lants as a tindal, except during the; periods during which he was employed by the appellants, on consecutive days. The periods of such continuous employment were very short of a few days. We are, therefore, concerned here only with clause (b). which applies "where the whole of the continuous period of service immediately preceding the accident during which the workman was in service of the employer, who is liable to pay the compen sation. was less than one month". There are two alternative methods of calculation prescribed in clause (b), the first of which applies were there is another workman to be found who was employed "on the same work by the same employer during the twelve months immediately preceding the accident. Presumably this would apply where there was another workman to be found similarly employed that is to do the same kind of work, who had been in continuous service of the employer during the previous twelve months. There was no such other workman in the present case. Tindals could not be said to be continuously in the service of the employers who retained them, except during the periods when they were employed as tindals on consecutive days. The first of the two methods is, therefore, not applicable here. The second method, therefore; applies as "there was no workman so employed to by found", The actual words of clause (b) which apply when the second method of calculating the monthly wages has to be applied are: "The monthly wages of the workman shall be deemed to be the average monthly amount which, during the twelve months immediately preceding the accident, was earned, by a workman employed on similar work in the same locality." The question before Commissioner, therefore, was simply this: "What was the average monthly amount which a tindal like Jumo working in the same locality earned during the twelve months before the accident?" I am quite unable to see how it is possible to argue that in the present case this question could be correctly answered by finding the amount which Jumo used to earn on the average every month from the appellants alone. Mr. Choithram's contention appears to me to be plainly in contradiction of the plain terms of that part of clause (b) which applies here. The Commissioner had to find "the average monthly" amount earned by a workman "employed on similar work in the same locality" as jumo, The average to be found had to be the prevailing average during the twelve months immediately preceding. It would be clearly impossible, as a Matter of arithmetic, to find what "the average monthly amount" earned by such a workman was unless one took into account all that the workman earned from all employers on the average during a month in the fear under consideration. This necessary implied by the term "the average monthly amount." I can see nothing, as I said before, .in the scheme of the Act or in the words used, which sup port Mr. Choithram, and the plain grammatical meaning of the enacted words appear to me to contradict Mr. Choithram's con tention. During the course of his argument, Mr. Choithram referred us to a number of English decisions where the corresponding English Acts had been construed. But having regard to the differences, between the English enactment, which were construed in these decisions and the Act before us, I cannot see how any of these decisions in any manner help Mr. Choithram. For these reasons I agree that there is no reason for holding that the learned Commissioner erred in the method adopted by him. A. H. Appeal dismissed.