JUDGMENT
A.G. Qureshi, J.
1. This appeal shall also govern the disposal of M.A. No. 134 of 1980 (Moolchand v. Mahendrakumar). Both these appeals have been filed under Section 30 of the Workmen’s Compensation Act, 1923, against the order of the Commissioner for Workmen’s Compensation, Ratlam, dated 12th March, 1980, in Claim Case No. 17/1977/W.C.A.(N.F.).
2. The facts leading to these appeals, in short, are that the respondent in M.A. No. 136 of 1990 filed a claim petition before the lower court alleging that on 9th August, 1976, while working as a silawat under the employment of the appellants during the construction of their house he suffered an injury in the eye due to which his one eye was damaged. He could not attend to his normal duties from 9th August, 1976 to 23rd August 1976, as such he suffered a loss of Rs. 150 on that count and he claimed entitlement of Rs. 12,600 in addition to that as compensation from the appellants.
3. The claim was resisted by the appellants in M.A. No. 136 of 1980 (respondents in M.A. No. 134 of 1980) on the ground that the applicant respondent is not covered by the Workmen’s Compensation Act and no injury was caused to the applicant while being in the employment of the non-applicants appellants.
4. Learned Commissioner for Workmen’s Compensation, vide the impugned order dated 12th March, 1980, awarded an amount of Rs. 5,670 by way of compensation to the respondent. Aggrieved by the said order of the learned Commissioner for Workmen’s Compensation, Appeal No. 136 of 1980 has been filed. Dissatisfied with the adequacy of the award amount, the claimant has also filed Appeal No. 134 of 1980.
5. Learned counsel for the appellant in M.A. No. 136 of 1990, Smt. Chaphekar, assails the judgment of the lower court mainly on the ground that the respondent does not fall within the category of a “workman” as defined under the Act. The respondent was never employed in any of the capacities specified in Schedule II to the Workmen’s Compensation Act. Under that Schedule, a person employed in the construction, repair or demolition of a building does not become a “workman” unless the building is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex. As such in the absence of any pleading or proof, the respondent could not be treated as a “workman”. It has further been argued that the lower court wrongly assumed that the building under construction was intended for the use of appellant’s trade or business.
6. On perusing the record I find that in the application for compensation by the workman, he has not shown that the house under construction, on which the respondent was working, was more than 12 feet in height. AW-2, Kaniram, the witness of the applicant, has stated that he does not know whether the claimant was daily wage worker or was employed by the non-applicants. In para 6 of his statement this witness states that the house where the claimant was working was being constructed for the residence of the non-applicants. The house wherein a shop is located and in which the non-applicants are residing is a different house from the one which was being constructed. Moolchand, the claimant, has examined himself as AW-3. He states that he was employed by the non-applicants on a salary of Rs. 300 per month. In para 7 of his statement he, however, states that he got the wages for the days for which he worked. This witness also states that he was working on the residential house of the appellants when he got the injury while working on stone.
7. AW-4, Jagdish, states that the applicant was getting Rs. 10 per day as a silawat (mason) for constructing the house. This witness states that this house contains cement, lime, baloo reth and there is one tenant also in that house. He has, in cross-examination, stated that a silawat gets Rs. 10 per day and that is the amount which was agreed to between the parties as the wages for the work.
8. In view of the aforesaid evidence it is manifest that the house where the construction
was being done was a house which was being
constructed for the residence of the appellants. There is no iota of evidence to show that the house was being constructed beyond 12 feet in height or has more than one storey. The learned lower Court has arrived at the conclusion that the house was being used for trade and business. But the evidence of AW-2, itself goes to show that the house where AW-4, Jagdish, stores lime, cement, etc., and where one tenant was residing is a different house from the one which was being constructed. The applicant himself says that he was working on the residential house. In view of the aforesaid evidence, in my opinion, the learned Commissioner erred in arriving at the conclusion that the applicant falls within the definition of ‘workman’ in accordance with Schedule 11 to the Act.
9. It is, therefore, held that the respondent applicant docs not fall within the definition of ‘workman’ as defined under the Workmen’s Compensation Act because he had failed to prove any of the conditions which brings a casual worker within the definition of a “Workman”. As such for want of proof of the essential ingredients bringing the applicant within the category of workman, the judgment impugned could not be passed by the learned Commissioner.
10. In view of the foregoing discussion, M.A. No. 136 of 1990 is allowed. The judgment impugned is set aside and the application for compensation filed by the respondent is dismissed. In view of the above, M.A. No. 134 of 1980 fails and is dismissed because the provisions of the Workmen’s Compensation Act are held inapplicable in the present case. There shall be no order as to costs.