JUDGMENT
T.C. Das, J.
1. This appeal Under Section 30 of the Workmen’s Compensation Act 1923 arises out of the order dated 20-12-83 passed by the Additional Deputy Commissioner-cum-Commissioner under the Workmen’s Compensation Act, Dhubri in Workmen’s Compensation Case No. 47 of 1978. The Regional Manager, Food Corporation of India and the Depot in-charge of the Dhubri Godown of the Food Corporation of India are the appellants herein.
2. The case in brief is that respondent No. 1, Shri Ramayan Sahani of Ward No. 13 of Dhubri town was employed by the contractor for the services of the Food Corporation of India, in short ‘FCI’, for loading food grains of FCI from truck No. ASG 707 of the railway wagons at Railway goods yard at Dhubri on 14-8-77. During the course of such employment Ramayan Sahani received grievous injury on his left thumb on the said date and thereafter he was taken to Dhubri Civil Hospital where he was admitted as an indoor patient upto 1-9-77. He had lost the left thumb due to the injury as a result of which, as he stated, his earning capacity was reduced by 25%. He raised claim under the provisions of Workmen’s Compensation Act, for short ‘the Act’, after due notice. He claimed a lump sum amount of Rs. 14,000/- as compensation for loss of his left thumb. The claim was registered in the court of Additional Deputy Commissioner-cum-Commissioner under the provisions of the Act, Dhubri. On being served with the notice, the appellants appeared and contested the claim of the claimant denying the averments made by him. Besides other points on facts, the appellants raised the following legal points before the Commissioner. They are–(a) that the claim petition of Ramayan Sahani, the claimant, was not maintainable as he was not a workman within the meaning of Section 2(1)(n) of the Act, (b) that the accident was due to his negligence; (c) that the earning of the claimant did not decrease by 25% due to loss of his left thumb; and (d) that he was not entitled to Rs. 14,000/- as lump sum compensation. Several issues were framed by the learned Commissioner. Thereafter, upon hearing the parties and also on scrutiny of the evidence on record the learned Commissioner by the impugned judgment and order dated 20-12-83 awarded lump sum compensation of Rs. 5,000/- to the claimant Ramayan Sahani. Being aggrieved by the aforesaid award the present appeal has been presented by the appellants on substantial questions of law. The provision for appeal against the order of Commissioner on substantial questions of law is prescribed Under Section 30, N. III(b) of the Act. Mr. S.N. Chetia, the learned Additional Senior Central Government Standing Counsel submits that the learned Commissioner wrongly accepted the respondent No. 1 as workman and awarded compensation for the injury sustained. In other words, the learned Counsel has submitted that the respondent No. 1, Ramayan Sahani being not a workman within the meaning of Section 2(1)(n) of the Act he is not entitled to any compensation under the provision of the Act. This stand of Mr. Chetia appears to be the crux of the matter. If the respondent No. 1 was not a workman during the relevant period the question of awarding compensation under the provision of the Act does not arise. Therefore, it is, to be ascertained as to whether the respondent No. 1 was a workman within the meaning of provision of the Act. As regards the quantum the learned Standing Counsel has submitted that the assessment of compensation was arbitrary and excessive. Let me examine whether the respondent No. 1 was workman within the meaning of the Act. Section 2(1)(n) of the Act defines workman as follows:
2(1)(n) workman means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer’s trade or business) who is a railway servant as defined in Section 3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or subdivisional office of a railway and not employed in any such capacity as is specified in Schedule II or employed on monthly wages not exceeding four hundred, rupees, in any such capacity as is specified in Schedule II….
The list of persons mentioned in Schedule II are included as workmen within the meaning of Section 2(1)(n) and includes inter alia a peason who is employed in 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 any 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, fifty or more persons have been so employed….In order to exclude a person from the category of workman entitled to compensation under the Workmen’s Compensation Act, it has to be shown that he is a casual employee and is not engaged in the trade or business of an employer. In construing what is an employment of a casual nature, it is the nature of the service which has to be looked at and not its duration. In order to find whether the accident had arisen out of and in the course of the workman’s employment it is necessary to find what his employment was. No general definition can be given the expression ’employment of casual nature’, it seems to imply something midway between the regular employment of a workman and an engagement for a single day. The word ‘casual’ is used colloquially, not as a term of precission. It is a question of fact to be decided in each case. If the employment, though casual, is for purposes of the employer’s trade or business, it is within the Act. ‘Business’ means anything which occupies the time and attention and labour of a man for the purpose of profit or gain. With the progress of times, the concept and the circumstances in which a workman is entitled to compensation has considerably widened and liberal construction has to be put on this phrase. If a man is employed for the purposes of the trade or business, the employer is liable, even though the employment is of a casual nature.
3. In the latest case of C.H. Subba Rao v. Bagyammal (1964) II M.LJ. 58 it was held that while a cooly or labourer engaged to load and unload sand in the lorry met with an accident while he was in the lorry and died, he must be held to be a “workman” within the definition in Workmen’s Compensation Act and employer is liable to pay compensation to the dependents of the workman who died in the course of his employment. This case is almost similar to the present case except the consequence.
4. It has not been disputed that the injury in question was caused to the respondent No. 1 in course of his employment as labourer while he was engaged to unload the foodgrains from truck to Railway wagon. The result of the injury was such that the respondent No. 1 had to lose his left hand thumb. It has been argued that the injury caused to the respondent No. 1 did not result in permanent disablement and, as such, even if he is held to be a workman yet he is not entitled to compensation to the tune of Rs. 5,000/- as awarded by the Commissioner.
5. Mr. A. Dasgupta, the learned Counsel appearing on behalf of Respondent No. 1 has replied to the submission made by Mr. Chetia on the point of the maintainability of the claim petition of respondent No. 1 as workman. It is submitted by Mr. Dasgupta that the definition of workman as laid down Under Section 2(1)(n) of the Act gives a wide meaning to include the respondent No. 1 who was a labourer working under the employer FCI to load and unload foodgrains of FCI. In course of business of employer the respondent No. 1 was engaged as labourer. Therefore, there was, according to learned Counsel, direct nexus between the accident and the relationship of respondent No. 1 and the appellants which occurred in course of employment. It is the consensus view of several High Courts and also of the Supreme Court that if a man is employed or the purpose of trade or business of an employer will be a workman though the employment is of casual nature. The burden of proof that the claimant was not a workman is on the employer. In order to exclude a person from being considered as a workman both the conditions i e. (i) that his employment is of a casual nature and (ii) that he is not employed for the purpose of employer’s trade or business have to be simultaneously satisfied. Both these qualifications or rather disqualification must be present together. The mere fact that the injured employee was employed only for a few days at a time will not be sufficient to remove him from the category of a workman within the meaning of the Act. The onus is on the employer to prove that the claimant is not a workman. It can be seen in many cases that officers of the Departments of the State or Central Government generally entrust work to the contractors and an employee employed by the Contractor must be held to be entitled to claim compensation if during the employment accident occurs. The same view was expressed by their Lordships in Pratap Narain Singh v. Shrinivas . It was held in that case that in case of a personal injury caused to a workman by an accident which arises out of and in the course of employment, unless the right to compensation is taken away Under Sub-section (5) of Section 3, the employer becomes liable to pay the compensation as soon as the aforesaid personal injury is caused to the workman.
6. The facts of this case clearly established that the injured Ramayan Sahani was engaged as a labourer to load and unload the foodgrains of FCI and he met with an accident in course of his work. It is true that for making out a claim under the Act it is necessary to establish a definite connection between the workman and the accident leading to the injury. In the present case there was no definite and positive denial of the fact that the respondent No. 1 was not injured during the course of his work. Mr. Das Gupta the learned Counsel for the respondent No. 1 has submitted that the question as to whether the respondent No. 1 was a workman is a finding of fact and he was considered to be a workman by the learned court below on consideration of the nature of the work and the employment and as such this cannot come within the purview of Section 30 of the Act to be treated as substantial question of law. This proposition cannot be accepted on the ground that to find out as to whether the person was or was not a workman within the meaning of the Act depends upon the nature of work done by him it being an inference that the respondent No. 1 was workman from the facts essablished it is a question of law within the meaning of provision of Section 30 of the Act.
7. Upon hearing the learned Counsel of both the parties and on consideration of the facts and circumstances of the case, in my opinion there is no escape from the conclusion that Ramayan Sahani, respondent No. 1 was a workman and he received injury during the course of his employment. The next question that has been raised by Mr. Chetia, learned Standing Counsel is as regards quantum of compensation. The learned Commissioner after giving due attention to the facts and circumstances of the case and also as to the monthly income of the respondent No. 1 and the nature of injury sustained by him awarded just and proper compensation of Rs. 5,000/% Therefore, I do not find any material to interfere with the impugned Judgment and award of the learned Commissioner.
8. In the result the appeal stands dismissed. No costs.