P L D 1961 Dacca 550 (PLP)

9. On these pleadings, the coolie contractor was also made a party. He also filed a written statement and statement that he was the sole coolie contractor for the appellant for the work of loading and unloading and maintained that the coolie so employed were employed according to the requirements of the appellant and paid according to the work done by them. They were according to him, not employed either whole time or on daily or monthly wages, they did part time work of casual nature and for the rest of the period they were free to work anywhere else and for any other purpose. According to this contractor, the deceased was such a casual or occasional labourer who used to take part‑time work under the said contractor. But he denied that on the alleged date the deceased was employed by him even for transporting any sugar bag on, behalf of any approved dealer who purchased the sugar from the godown of the appellant. Hence, even he was not liable for any alleged accident that may have caused injury to the deceased. He, too, took up certain other technical defences with which we are not concerned here.

10. In support of their respective cases both sides adduced evidence. Both the petitioners examined themselves and two other persons. The petitioners themselves merely proved that they depended on the earnings of the deceased and his average earning in a week was about Rs. 40 to Rs. 50 and that he died on account of the accident which occurred on the 3rd October 1955.

11. P. W. 3 was a fellow worker who also was formerly employed by the appellant Messrs Adam Limited. He stated that the deceased worked as a labourer under Adam Limited and that all the labourers used to be taken to work by the contractor Asik Ali and he was the contractor who used to pay the coolies for works done on behalf of the appellant. He maintained that he saw the deceased carrying a heavy bag of sugar on the 3rd of October 1955 at about 2‑30 or 3 p. m. After the accident also he saw the deceased in the Dacca Medical College Hospital and when he returned from the Medical College Hospital he was still very ill and he died a few days after returning from the Hospital. The deceased was a distant nephew of his and the coolie contrac tor was also a distant uncle of this witness. It was elicited from him in cross‑examination that generally 30 or 50 labourers remain ready at the godown of the appellant Adam Limited and they work as directed and posted by the employers or their contractor and that no outsider coolie carry any load of sugar from the godown to any boat for delivery to purchasers. Labourers, according to him, were always paid through the said appellant's agents, namely, the coolie contractor and, as such, it is not possible for the labourers to say who actually spent and for which kind of work they have been employed for it was the contractor alone who informed them and knew it. In cross‑examination to the contrac tor he also maintained that labourers engaged in one firm, even though they remain idle, could not be employed to carry out the work of another firm.

12. The next witness is a doctor attached to the Dacca Medical College Hospital. He brought certain papers from the Hospital to show that the deceased was admitted on the 3rd of October 1955 and was discharged on the 25th of October 1955 although he was neither cured nor fully relieved. By the discharge certificate he was also instructed to report again in about ten weeks' time. The doctor claims that he personally examined the deceased and found him suffering from certain internal injury, as for example, he could not move his lower limbs nor could he pass urine or stool. He had also difficulty in moving his finger and wrist joints, although he had no pain from the abdomen down wards: From these data he came to the opinion that the deceased had suffered from some kind of spinal injury and diagnosed the case as the case of spinal cord injury. As no fracture was found as a result of the X ray examination the conclusion was that the injury was in the spinal cord structure which cannot be normally detected by X ray examination. It was also elicited from him in cross‑examination that they had no history of any chronic disease of the patient, although in certain chronic, diseases similar symp toms might develop.

13. As against this, on behalf of the appellant also some four witnesses were examined. Of these O P. I. was a clerk in the employ of the appellant Adam Limited. He said that he was present at the, place of business of his employer on 3‑10‑1955 but he knew of no accident which occurred within the premises of his employer on that day. According to him, the coolies employed by the, firm are not required to work at all outside the godown but they bring sugar from Railway wagons on trucks which come to the gate of their godown and unload the truck there. Their coolies were not employed for unloading a wagon itself and that on the date of the accident, of which he came to know one or two days later, the deceased was not carrying any sugar load from the godown of his employer. But this witness admixed that if any worker employed by the firm meets with an accident, even outside their premises but while doing their job directly or under their contractor Asik they would be responsible for such accident. The said Asik was their only standing contractor and he engaged all labourers that were necessary for the work. Unfortunately this witness did not know the deceased Mian Jan personally and, hence, his statement that the deceased was not employed in carrying any sugar load from the godown of Messrs Adam Limited on this particular day, cannot be relied upon and has not been relied upon by the learned Commissioner.

14. The next witness examined on behalf of the appellant was another godown clerk. He too, did not know the deceased personally. According to him, a dealer purchasing sugar from their godown may take delivery with the help of outside coolies and pay for them and until such coolies are engaged, no delivery is given. This witness also confirmed that the labourers employed by the appellant were paid through the coolie contractor, namely, Asik Ali Sardar and the labourers are paid on hour rate basis and not on time basis. It was suggested to him that the contractor Asik Ali actually went to Hospital with the deceased Mian Jan but he neither affirm nor deny the same, as he was not aware of what happened.

15. O. W. P. 3 was a ration dealer who purchased sugar from the appellant Adam Limited on the 3rd of October 1955. He states that he personally went to the godown of the firm and came back with sugar by boat and was present when the sugar was carried to his boat by 3 or 4 coolies, although there is some discre pancy in his evidence with regard to the exact amount of sugar purchased by him and the number of coolies employed for this purpose. The coolies, according to him, were waiting in front of the godown of Adam Limited and he asked the coolie contractor Asik Ali to engage the coolies and on this being done, the coolies took delivery of the sugar from the godown and carried the same to the boat but he could not say as to whether the coolies were the godown coolies or outside coolies. He, however, maintained that he paid the coolie charges to the contractor Sardar Asik Ali and the payment he made was. at the rate of Re. 1 per maund to the said contractor.

16. The last witness examined on behalf of the appellant was another coolie. He proved that Asik Ali was the only Sardar who supplied coolies to the appellant Adam Limited. He knew the deceased‑Mia Jan but he did not know the cause of his death. According to him, coolies could work for different firms though under the same coolie contractor, as also. for outsiders and they could be engaged by private persons, such as approved dealers or others who would pay them directly and for such work they would not be paid through the coolie Sardar. The coolie Sardar according to this witness, paid them only when they worked for the firm. It was also suggested to this witness that his brother Naloi Baksh and the coolie contractor Asik Ali actually carried Mia Jan to the Hospital.

17. Relying mainly on the evidence of P.W. 3 and O P. Ws. 3 and 4, the learned Commissioner has come to the finding that the deceased was a workman employed for the purpose of loading and unloading in the godown of the appellant Adam Limited at the time when he received the injury and that he ultimately died as a result of that injury. Hence Messrs Adam Limited was liable to pay compensation to the heirs of the said Mia Jan which he assessed at Rs. 3,

500. From P. W. 3 he accepted the fact that at about 2 or 2‑30 p.m. the deceased was employed in carrying a heavy bag of sugar from the godown of the appellant Adam Limited to the ghat. From O. P. W. 3 he accepted the fact that for the sugar so carried the coolies were paid through the contractor Asik Ali for he was the dealer who took the supply of sugar and it was said that he paid the coolie charges at the rate of Re. 1 per maund to the contractor Asik Ali. Another witness of the appellant itself, namely, O. P. W. 4 clearly admitted that when coolies were paid through the Sardar the payment was for the work of the firm and not for the work of any one else. In the present case since on the showing of one witness examined on behalf of the appellant firm itself the payment was made through the Sardar, the employment was for the purposes of the firm and not for any one else. In this connection it may also be mentioned here that the first witness examined on behalf of the appellant further admitted that if the worker was employed either directly for the purposes of the firm or under the coolie contractor Asik Ali and met with art accident even outside the premises of the firm, the company would be liable for compensating the labourer concerned for the accident.

18. Upon these facts, the learned Commissioner has clearly held that "on the date of accident and at the time of it Mia Jan was doing work of O. P. No. 1 as their worker and in the course of that work he met with the accident. Furthermore, that "petitioners" party accordingly proved that "Mia Jan died as a result of that injury and he did not recover from it. There is no evidence on the side of O. P. contrary to that, rather it is un disputed now that he did not recover from the injuries and that he died of that effect."

19. The appellant now argues in support of this appeal that the learned Commissioner has failed to record a finding that the deceased was a workman at all within the meaning of the Work men's Compensation Act and until such a finding was recorded, he acquired no jurisdiction to award any compensation at all. "Workman", according to him, is defined in clause (n) of section 2 of the said Act. According to this definition. "Workman" means any person other than a person whose employ menu is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or businesses who is‑ "(i) a railway 'servant as defined in the section 3 of Railways Act, 1890, not permanently employed in any administrative, district sub‑divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii) employed . . . . . . on monthly wages not exceeding four hundred rupees, 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 His Majesty's naval, military or air force . . . . ., and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his defendants or any of them." Schedule II of the Act gives "a list of persons who, subject to the provisions of section 2 (1) (n), are included in the definition of workmen", and under clause (xxvi) thereof any person who is‑ "Employed in the handling or‑transport of goods, in or within the precincts of, (a) any warehouse or other place in which goods are stored, and in which on lany one day of the preceding twelve months ten or more persons have been so employed ; or (b) any market in which on any one day of the preceding twelve months one hundred or more persons have been so employed, or."

20. It is, therefore, contended that various questions had to be considered by the learned Commissioner, namely, (1) as to whether the employment was of a casual nature or for purposes other than the purposes of the appellant's trade or business (2) Whether the deceased came under any one of the categories mentioned in Schedule

11. In the present case the only category ;mentioned in Schedule II which was applicable was clause (xxvi) and, there, according to the learned Advocate the handling or transport of the goods had to be within the premises of the emplo yer such as a warehouse or any other place where goods are stored and at least ten or more persons employed.

21. In the present case there is, of course, evidence of P. W. 3 that the sugar was stored in the godown of the employer at which 30 to 50 persons ware normally employed.

22. The other contention of the learned Advocate is that the list enumerated in Schedule 11 is exhaustive and unless it is shown that a worker comes under anyone of the categories mentioned therein, he cannot b; treated as the worker at all.

23. In support of this contention of no decision, of course, has been relied upon. We consider this contention untenable because the heading to the list starts by saying that Schedule II is a list of persons "included" in the definition of workman. The usual rule of interpretation is that the word includes, connotes a sense of enlargement that is to say, the persons who may not normally come within the definition at all, would nevertheless be included there by reason of this special specification. Our opinion, therefore, is that the intention of Schedule II was that no matter whether a workman did or did not come within the definition as given in clause (n) of subsection (1) of section 2 of the said Act, if he came within any one of the categories enumerated in Schedule Il, he was to be treated as a workman. This was done in order to make provisions for certain specific kinds of hazardous employment where accidents were likely to occur and for the benefit of the workman they were deemed to be workmen under the Act if they were employed in connection with such hazardous employments.

24. The next contention of the learned Advocate is that the learned Commissioner has taken no account of the evidence adduced on behalf of the appellant to show that the employment of the deceased was of a casual nature and was certainly not in the course of the employment of Adam Limited. Firstly, we do not agree that on the facts found by the learned Commissioner the employment has been dealt to be of a casual nature and secondly, we are unable to agree that if an employment is of a casual nature the workman is excluded from the benefit of the Act. In our opinion, the two conditions, namely, employment of a casual nature and employment otherwise than for the purposes of employers' trade or business must both exist before the exclusion can be oper ative. The use of the word `and' in the present case denotes that these two conditions are to be read conjunctively and not disjunc tively. In this view we also find support from a decision of the Allahabad High Court in the case of Bachai Misiri v. Shanti (A I R 1946 All. 473) where it was clearly pointed out that "in order to take a. person out of the definition what is required is that his employment should be both of a casual nature and that it should be otherwise than for the purposes of the employer's trade or business."

25. The same view was accepted by the Calcutta High Court in the case of The Khu1na Electric Supply Corporation Ltd. v. Bahadur Sardar and another (42 C W N 516), and we are in agreement with these decisions.

26. Lastly, the learned Advocate also ought to question the validity of the assessment of compensation made in this case as also the finding that the cause of death had not been established upon the evidence in this case.

27. There seems to be some impression that unless a post mortem report is produced, the cause of death cannot be estab lished. We are not prepared to agree with the learned Advocate that the cause of death has to be established with such particularity as in a criminal case. All that section 4 requires is that death should result from the injury. If the death so result from the t injury, then the compensation is to be calculated on the basis of the table given at Schedule IV of the Act. This merely means that there must be some kind of casual relationship between the injury and the death and not that the death must be directly and specifi cally attributable to the particular injury caused. In the present case, however, upon the evidence, which remained practically un challenged we are satisfied that the death was due to injury caused to the workman by the accident alleged by the petitioners, namely, the accident on the 3rd of October 1955. The injury as proved by P. W. 4 was to the spinal cord and there is abundant evidence that the deceased never recovered from this injury to be able to resume his ordinary avocations of life. He died almost within a month of having received the injury.

28. Lastly, we might mention here that in an appeal under section 30 of the Workmen's Compensation Act the appeal only lies where a substantial question of law is involved in the appeal and this Court has at least in two cases taken the view' that investiga tion into facts is not permissible in an appeal of this nature unless the investigation is for the purposes of or connected with the substantial question of law raised. These decisions are in the cases of Messrs Haji Osi Meah, c/o Mackinnon Mackenzie & Co., Ltd. v. Sekandar Ali and others (10 D L R 299) and Muslim Cotton Mills (Pakistan Industrial Development Corporation) v. Din Islam (P L D 1959 Dacca 599). In the latter case the question has been very fully and exhaustively dealt with and it has been held that in an appeal under section 30 of the Workmen's Compensation Act, the High Court cannot review a finding of fact unconnected with law arrived at by the Com missioner.

29. We repeatedly asked the learned Advocate appearing for the appellant in this matter to point out as to what was the subs tantial question of law raised in this case but the learned Advocate has been unable to do so apart from urging the question of law that the learned Commissioner had exceeded his jurisdiction in law by failing to come to a finding that the deceased was a workman within the meaning of the Act.

30. We have already discussed this question earlier in this judgment and have found that the learned Commissioner did come to such a necessary finding upon the facts established in this case. For these reasons, there is no substance in this appeal and the appeal is accordingly dismissed with costs. K. B. A. Appeal dismissed.