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FA/488/2003 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 488 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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SIDIKBHAI
ALIBHAI
Versus
HALAR
ENGINEER THRO' LILADHAR KESHUBHAI VANIYA
======================================
Appearance
:
MR NIRAV C THAKKAR for
Appellant.
MR JV JAPEE for Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 12/08/2008
ORAL
JUDGMENT
1. By
way of this appeal, the appellant-original applicant has challenged
judgment and order dated 9th July 2001 passed by
Ex-officio Commissioner of Workmen Compensation and Labour Court
Judge, Jamnagar in Workmen Compensation (Non Fatal) Case No.229/1993,
whereby the claim of the appellant was dismissed.
2. The
case of the original applicant is as under:
3. The
original applicant ? appellant herein was working as a labourer
with the respondent. On 13-6-1992, son of owner of respondent firm
has taken him for labour work with three other labourers. While
doing the work, the appellant herein has suffered injury and three
fingers of his leg were fractured. The appellant had taken treatment
in Irvin Hospital. Inspite of that permanent disability has remained
in the body of the appellant and, therefore, he had given notice to
the respondent to pay compensation. However, since said amount was
not paid, the appellant had filed aforesaid Compensation Case with a
prayer to grant Rs.1,03,990/- as compensation.
4. Said
claim of the workmen was resisted by the respondent by filing reply.
It is stated by the respondent that the appellant has not gone for
work with son of owner of respondent firm. It is also denied that
the appellant has sustained injury during the course of employment.
It is stated that if the workmen has sustained injuries while doing
work of any other firm, for that the respondent cannot be held
liable. It is also stated that the appellant is doing same work even
after accident and, therefore, it is prayed that the claim of the
appellant may be dismissed.
5. After
considering the evidence on record, Workmen Compensation Commissioner
dismissed the application of the appellant. Being aggrieved by it,
the appellant has filed present appeal.
6. Learned
advocate for the appellant has raised contention that the Workmen
Compensation Commissioner committed an error by not considering that
the appellant was a ‘workman’ as per the provisions of Workmen’s
Compensation Act, 1923. He also submitted that it is the duty of the
respondent to prove that the appellant is not a workman of the
respondent. He also submitted that since the appellant has sustained
injuries during the course of employment, compensation is required to
be paid to the appellant. He,
therefore, prayed that this appeal may be allowed by setting aside
order of the Workmen
Compensation Commissioner.
7. Learned
counsel for the respondent submitted that the appellant is not
‘workmen’ as per the definition given in Workmen Compensation Act.
He also submitted that even otherwise, the appellant has not
sustained any injury during the course of employment. He also
submitted that since there is no decrease in earning capacity of the
appellant and since the appellant is continuing to do the same work,
award of the the Workmen
Compensation Commissioner may not be interfered with. In view
of above submissions, he prayed that this appeal may be dismissed.
8.
I have considered the
submissions made on behalf of both the side and also gone through the
judgment of the trial Court and other relevant documents. At the time
of deciding the issue, the Workmen Compensation Commissioner has
considered the definition of ‘workman’ given under the Act and, as
per the same, the appellant cannot be said to be ‘workman’.
Therefore, it is rightly held that the appellant is not entitled to
any compensation under the Workmen Compensation Act. I am in
complete agreement with the reasonings given and finding arrived at
by the Workmen Compensation Commissioner while passing impugned
order. No other evidence is shown to me to take a contrary view and
this appeal is devoid of any merits. Therefore, I do not find any
reason to interfere with the impugned judgment.
9. For
the reasons stated herein above, the appeal deserves to be dismissed
and the same is dismissed with no order as to costs.
(K.S.Jhaveri,
J.)
*malek
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