JUDGMENT
Patkar, J.
1. In this case the applicant claimed compensation for the death of her son Yasin Anuddin, who was employed by the appellant owning property at Parel, and who fell from the scaffolding while executing repairs to his building.
2. The Commissioner found that the workman’s employment was not of a casual nature, but on the contrary he was regularly employed for an appreciable period of time by the same employer.
3. It is contended on behalf of the appellant that the employment of the deceased was of a casual nature. “Workman” is defined in the Workmen’s Compensation Act, VIII of 1923, Section 2(1)(n), as follows :-
‘Workman’ means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business) who is employed, either by way of manual labour or on monthly wages not exceeding three hundred rupees, in any such capacity as is specified in Schedule II.
4. Under Schedule II, Clause (vi), any person who is employed in the construction, repair or demolition of a building which is designed to be, is, or has been more than one storey in height above ground level is a workman within the meaning of Section 2(1)(n) subject to the provisions of that section. The building on which the deceased was employed was more than one storey in height above ground level. The question, therefore, in this appeal is whether he falls within the two exceptions mentioned in the definition, namely, where the employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business. Two conditions are required to exclude a person from the category of a workman. If any of these conditions is not satisfied, he is a workman within Section 2, Clause (1)(n).
5. It is necessary to decide whether the employment of the deceased in this case was of a casual nature. Several cases were cited before us which interpreted the phrase “of a casual nature” by contrasting it with its opposites regular, periodical or permanent. In Knight v. Bucknill (1913) 6 B.W.C.C. 160 it was observed by Lord Justice Hamilton as follows (p. 164):-
It would appear to infer something midway between the regular employment of a workman and a simple engagement for a single day, and I think that casual is here used not as a term of precision, but as a colloquial term.
6. He further observed :-
… it may be inferred that when the state of facts is midway between these two states, so that the question is reasonably debatable, it must be for the County Court Judge to decide.
7. The same view was accepted in Smith v. Buxton (1915) 8 B.W.C.C. 196. In Hughes v. Walker (1926) 19 B.W.C.C. 79, it was observed as follows (p. 83):-
In the course of the many oases which have been decided it appeal’s that the Courts have leant more generally to saying that the question of what is casual labour is a matter of fact to be determined by the County Court.
8. It was further observed as follows (p. 85):-
In the present case it appears to me that there was evidence before the County Court Judge which would justify him in holding that a man employed to build a wall at a rate of wages, whether determined by the hour, by the week or by the day I care not, but employed to build a wall, might well be found to be engaged in an employment that was not of a casual nature.
9. The Commissioner in this case observed in the course of his judgment :-
It seems to me impossible to argue that his employment was of a casual nature. If it were so held, the majority of workmen in the building trade might never get any compensation at all because it is well-known that they go from job to job and from employer to employ or.
10. That appears to us not to be a conclusive teat. The question in each case is whether on the evidence the employment is of a casual nature. The onus in such cases would be on the employer to prove the condition which is necessary for the purpose of excluding a person from the category of a workman, and it has to be shown that the workman’s employment was of a casual nature.
11. It appears from the evidence in this case that the job of repairing the building was entrusted to five or six persons for a period which was expected to take more than twenty days, and five or six labourers were employed. They were not paid by the day, though the payment by the day is not conclusive in such cases. There appears to be a regular employment of five or six workmen for a particular job, and there is evidence in this case on which the Commissioner could base his finding that the deceased was regularly employed and that the deceased’s employment was not of a casual nature.
12. We think, therefore, it is difficult to interfere with the finding of fact of the lower Court on this point. If the finding is accepted, it is not necessary to go into the other question as to whether he was employed otherwise than for the purposes of the employer’s trade or business, because if one condition fails, there is no exclusion of the deceased from the category of “workman.
13. The appeal, therefore, fails, and must be dismissed with costs.
Barlee, J.
14. I agree. The English cases show that the Judges of the Court of Appeal have hesitated to commit themselves to a definition of the word “casual”. Certain forms of employment clearly are casual. Others are not so, and there is a wide territory between in which no definite boundary line can be drawn. In the case of Knight v. Bucknill (1913) 6 B.W.C.C. 160 Lord Justice Hamilton said (p. 164):-
It (the word casual) would appear to infer something midway between the regular employment of a workman and a simple engagement for a single day, and I think that casual is hare used not as a term of precision, but as a colloquial term.
15. Then, is the employment of a man for a job which is likely to last for thirty days a casual employment or not ? That was the question which the learned Commissioner had to decide, and he has decided it in the negative, and we can only interfere with him if we consider that his decision is wrong in law. His statement of the law cannot be said to be incorrect, and his application of the law to the facts of this case is not obviously wrong. I say this without expressing any opinion of my own, for it is not for this Court to express an opinion on the facts. We can only interfere with the decision of the learned Commissioner if either his statement of the law is wrong or his application of the law to the facts is obviously wrong.
16. In these circumstances I agree that the appeal must fail.
