# Manju Chauhan v. Smt. Guddi Devi & Ors

- **Citation:** (2020) 2 ILRA 1292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-25
- **Case number:** First Appeal From Order No. 152 of 2004
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manju-chauhan-v-smt-guddi-devi-ors-45660
- **Pages:** 8

## Headnote

A. Civil Law-Workmen's Compensation
Act (8 of 1923) - S. 22 - Compensation - it
must be established that the workman
was
under
the
employment
of
the
employer and that he agreed to serve the
employer subject to his control and
supervision - that the workman should be
actually working at the time of injury /
accident - injury must be caused in the
course of & out of the employment
(Para 15)

Appellant called mechanic Om Prakash for
repairing engine (pumpset) - Om Prakash
told that wheel was cracked - In the
meantime deceased (Shyam Narain) of the
village came & started the engine despite
being stopped - deceased suffered serious
injuries
and
subsequently
died
-
Commissioner held that the deceased was
in casual employment of the appellant and
died
during
employment
-
Held
-
respondent-claimants failed to prove that
the
deceased
was
a
mechanic
of
engine/workman and in employment of the
appellant or there was any contract of
employment with him - there was no
relation
of
employer
and
employee
between the appellant and the
 (Para 30)

First Appeal From Order allowed. (E-5)

List of cases cited :

## Text

1292 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The perusal of sub section 5 of Section
401 of Cr.P.C. wherein it has been provided
that where under this Court an appeal lies but
an application for revision has been made and
the High Court is satisfied that such application
was made under the erroneous belief that no
appeal lies thereto and in the interest of justice
so to do, the High Court may treat the
application for revision as a petition of appeal.

6. From the perusal of the record it
comes out that no such application was ever
made by the revisionist despite a long period of
about 17 years have elapsed, saying that the
revision was filed under the erroneous belief
that no appeal lies thereto.

7. As per the statuary provision the
present criminal revision is not maintainable
and hence dismissed.
----------
(2020)02ILR A1292

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2020

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 152 of 2004

Manju Chauhan ...Appellant
Versus
Smt. Guddi Devi & Ors. ...Respondents

Counsel for the Appellant:
S.R. Rizvi, Manju Gupta, R.M. Dubey,
Sanjay Saxena, Uma Gupta, Vina Gupta

Counsel for the Respondents:
Arun Kumar Shukla, Arun Kumar Shukla,
M.K. Dixit, Prashant Kumar Mishra

A. Civil Law-Workmen's Compensation
Act (8 of 1923) - S. 22 - Compensation - it
must be established that the workman
was
under
the
employment
of
the
employer and that he agreed to serve the
employer subject to his control and
supervision - that the workman should be
actually working at the time of injury /
accident - injury must be caused in the
course of & out of the employment
(Para 15)

Appellant called mechanic Om Prakash for
repairing engine (pumpset) - Om Prakash
told that wheel was cracked - In the
meantime deceased (Shyam Narain) of the
village came & started the engine despite
being stopped - deceased suffered serious
injuries
and
subsequently
died
-
Commissioner held that the deceased was
in casual employment of the appellant and
died
during
employment
-
Held
-
respondent-claimants failed to prove that
the
deceased
was
a
mechanic
of
engine/workman and in employment of the
appellant or there was any contract of
employment with him - there was no
relation
of
employer
and
employee
between the appellant and the
 (Para 30)

First Appeal From Order allowed. (E-5)

List of cases cited :

1. Shri Chintaman Rao & Anr Vs The State
of Madhya Pradesh; AIR 1958 SC 388

2.
Valli,
Minor
Sengottaiyan,
Minor
Neelambal & Periyathayee Vs Sidhan & Ors

3. Kottayan Vs Zacharia Kurien @ Babu

4. Smt. T.S. Shylaja Vs Oriental Insurance
Company & Another; AIR 2014 SC 893

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Ms. Vina Gupta, learned
counsel for the appellant and Shri M.K.
Dixit, learned counsel for the respondents.

2. The instant First Appeal From
Order under Section 30 of The Workmen's
2 All. Manju Chauhan Vs. Smt. Guddi Devi & Ors.
1293
Compensation Act, 1923 (here-in-after
referred as the Act of 1923) has emanated
from the judgment and award dated
22.01.2004
passed
in
Case
No.13/5/3/3/3/1/25 under Section 22 of the
Act
of
1923
by
the
Workmen's
Compensation Commissioner / Collector,
Kheri
(here-in-after
referred
as
the
Commissioner).

3. As borne out from the pleadings
the deceased Shyam Narain, husband of
the respondent no.1 and father of the
respondents no.2 to 5 had suffered serious
injuries in an accident by the engine and
died. An application for compensation was
filed by the respondent-claimants under
Section 22 of the Act of 1923 being legal
heirs of the deceased Shyam Narain
alleging therein that the deceased Shyam
Narain S/o Sambharu was a mechanic of
engine and used to do the repairing of
engines. The appellant Manju Chauhan
came to the deceased Shyam Narain on
15.06.1996 and requested to him for
repairing of his engine. So, the deceased
went to his place for working in his
employment and as he started the engine
after repairing, one wheel of the engine
was broken in three parts due to
manufacturing defect from which the
deceased
got
serious
injuries.
The
appellant got him admitted in the district
hospital and after primary treatment he
was advised for treatment in Lucknow. So,
he was taken to Gandhi Memorial
Associated Hospital, Lucknow where
Shyam Narain died on 17.06.1996 at 09:40
in the morning.

4. The appellant was present at the
time of accident on spot and got the
deceased admitted in the district hospital
so there was no need of giving any legal
notice to him. The deceased was over 15
years of age at the time of death and his
income was Rs.2,000/- per month. The
respondent-claimants tried to settle the
matter with compromise but the appellantrespondents did not agree. Since the only
source of income for livelihood of the
family i.e. the deceased Shyam Narain had
died
therefore
they
prayed
for
compensation to the tune of Rs.2,00,000/-.

5. The appellant filed the written
statement denying the averments made in
the application and stated that the
respondent-claimants are not entitled for
any compensation. It has further been
stated that the deceased neither knew the
repairing of engine nor he used to work as
mechanic. He used to earn his livelihood
by doing tenancy. It has also been stated
that the appellant had never called the
deceased for repairing of the engine and he
had no technical knowledge in regard to
engine.

6. It has further been stated that
despite prohibiting, the deceased had
started the engine of the appellant on
15.06.1996 and excessively enhanced the
speed and before the speed could be
reduced the wheel of the engine had
broken due to negligence of the deceased.
Therefore, besides the deceased, Om
Prakash and Shri Pal were also injured.
The appellant was at a distance from the
engine. The deceased was neither an
employee of the appellant nor he was
called for work. An information in regard
to the accident was given by the appellant
to the Police on the same day and an
application
was
also
submitted
on
22.07.1996. It has also been stated that the
respondent-claimants had admitted that
there was manufacturing defect but the
manufacturing
company
was
not
impleaded who was a necessary party.
1294 INDIAN LAW REPORTS ALLAHABAD SERIES

7. On the basis of pleadings eight
issues were framed. Thereafter, Guddi
Devi as PW-1, Ram Asrey as PW-2 and
Nandu Ram as PW-3 were got examined
on behalf of the respondent-claimants. On
behalf of the appellant, Manju Chauhan
the appellant himself as DW-1 and Om
Prakash as DW-2 were got examined.
After considering the pleadings and
evidence
the
learned
Commissioner
allowed the claim of the respondentclaimants and awarded an amount of
Rs.1,18,236/- alongwith interest @ 9% per
annum from the date of accident to be paid
to the respondent-claimants as per the
apportionment given in the award. Hence
the
present
appeal
has
been
filed
challenging the same.

8. Submission of learned counsel
for the appellant was that the deceased
Shyam Narain was neither called for
repairing the engine nor he was in the
employment of the appellant. The
accident had occurred due to fault of
the deceased as despite prohibing he
had started the engine and due to
excessive speed, the wheel of the
engine was broken, in which besides
the deceased, two other persons had
suffered the injuries. Since, there was
no
employer-employee
relation
between the appellant and the deceased
therefore he is not covered under the
definition of workman given in the Act
of 1923. So no compensation could
have been awarded and the learned
Commissioner, without considering the
material
and
evidence
on
record,
wrongly and illegally held that the
deceased Shyam Narain was in casual
employment in agriculture business of
the
appellant.
It
has
also
been
submitted that since the deceased had
suffered injuries in the accident in
question therefore the appellant had
got him treated in the district hospital
and spent money from where he was
referred to Lucknow.

9. On the other hand, learned
counsel for the respondent-claimants
had submitted that the deceased was an
engine mechanic. He was called by the
appellant for repairing of the engine
therefore
he
was
in
his
casual
employment. But despite efforts of the
respondent-claimants the appellant was
not ready to settle the matter with
compromise therefore the claim was
filed before the learned Commissioner
which has rightly been allowed in
accordance with law after considering
the pleadings of the parties and
evidence. There is no illegality or error
in the judgment passed by the learned
Commissioner.

10.

I
have
considered
the
submissions of learned counsel for the
parties and perused the record.

11. In view of above, the
substantial questions of law involved
in this appeal are as to whether the
deceased was a workman as defined
under Section 2(1)(n) of the Act of
1923 and whether there was any
relation of employer and employee
between
the
appellant
and
the
deceased.

12. The relevant provisions of 'The
Workmen's
(now
Employee's)
Compensation Act 1923 are extracted
below for the convenience:-

"(e) "employer" includes any
body of persons whether incorporated or
not and any managing agent of an
2 All. Manju Chauhan Vs. Smt. Guddi Devi & Ors.
1295
employer and the legal representative of a
deceased employer, and, when the services
of workman are temporarily lent or let on
hire to another person by the person with
whom the workman has entered into a
contract of service or apprenticeship
means such other person while the
workman is working for him."

The definition of workman has
been given in Section 2(1)(n) of the Act of
1923, which is reproduced as under:-

"(n) " 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--

(i ) a railway servant as defined
in section 3 of the Indian Railways Act,
1890 (9 of 1890 ), not permanently
employed in any administrative, district or
sub- divisional office of a railway and not
employed in any such capacity as is
specified in Schedule II, or

(ii ) employed12in 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 of3the Armed Forces of the
Union]4; and any reference to a workman
who has been injured shall, where the
workman is dead, include a reference to
his dependants or any of them."

13. The definition of workmen was
amended by amendment Act 46 of 2000
and the words " Other than a person whose
employment is of a casual nature and who
is employed otherwise than for the purpose
of employer's trade or business" have been
omitted. But it would not be applicable on
the present case because in the present
case the accident is of 15.06.1996.
However, even after amendment it is to
established that the workman was under
the employment of the alleged employer
far a claim under the Act of 1923.

14. In view of aforesaid definitions
the workman means any person who is
employed in any such capacity as specified
in
the
schedule-II.
Schedule-II
(iii)
provides that any person who is employed
for the purpose of making, altering,
repairing,
ornamenting,
finishing
or
otherwise adapting for use, transport or
sale any article or part of an article in any
premises wherein or within the precincts
whereof twenty or more persons are so
employed. In state amendment of Uttar
Pradesh in Schedule II, after clause (iii),
clause
(xliii)
provides
employed
in
installation, maintenance or repair of
pumping equipment used for lifting of
water from wells, tub wells, ponds, lakes,
streams and the like.

15. Section 3(1) of the Act of 1923
provides the employer's liability for
compensation if personal injuries caused
to a workman by accident arising out of
and in the course of his employment.
Therefore, for a claim under the Act of
1923 it is necessary that the workman
should be actually working at the time of
injury or the accident and the injury must
be caused in the course of and out of the
employment, which is to be established.
The prima facie tests for employer and
employee relationship is existence of right
in the master to supervise and control the
work directly done by the servant not only
in the matter of directing what work the
servant is to do but also the manner in
which he shall do work.
1296 INDIAN LAW REPORTS ALLAHABAD SERIES

16. From combined reading of
above, if persons employed in any
premises wherein or within the precincts
whereof twenty or more persons are so
employed can be treated workmen within
the meaning of Section 2(1)(n). Though
the schedule has been amended and the
words 'wherein or within the precincts
whereof twenty or more persons are so
employed' has been omitted by Act 45 of
2009 w.e.f. 18.01.2010 but the same is not
applicable on the present case because in
the present case the accident is of
15.06.1996.

17. The perusal of the record
indicates that a claim was filed by the
respondent-claimants before the learned
Commissioner. The learned Commissioner
decided the issues no.1 and 2 without
considering the pleadings, evidence and
law applicable at the relevant time
recording a cryptic finding that it is clear
from the statements of local witnesses
available on record that the deceased
Shyam Narain was a mechanic of engine
who had gone to repair the engine of
Manju Chauhan i.e. the appellant. In this
way the deceased Shyam Narain was in
the casual employment in agriculture
business of Manju Chauhan while the
evidence is otherwise. Since, the deceased
Shyam Narain had died in the accident
occurred during repairing of engine of
Manju Chauhan so his dependents are
entitled for compensation under scheduleII, category (xliii) of the Act of 1923.
Accordingly, the issues no.1 and 2 are
decided against the appellant-respondent
and in favour of the respondent-claimants.
It is apparent from the aforesaid finding
recorded by the learned Commissioner that
the rival contentions of the parties and the
evidence adduced by them have neither
been considered nor discussed before
arising on the aforesaid conclusion. The
pleadings also does not indicate the Manju
Chauhan was in agriculture business.

18. Perusal of the pleadings and
evidence of the respondent-claimants
indicates that the deceased was a mechanic
of engine and he was called by the
appellant for repairing his engine. It was
denied by the appellant-respondent. It is
also reflected from the record that the
application
dated
22.07.1996
was
submitted by the wife of the appellant to
the Superintendent of Police, Lakhimpur
Kheri alleging therein that on Saturday i.e.
15.06.1996 at about 05:30 in the evening
mechanic Om Prakash S/o Sita Ram was
repairing the diesel pumpset of the
appellant. When the engine was repaired
then he was fixing the fan. In the
meantime, Shyam Narain S/o Sambharu of
his village came and started the engine
after lifting the handle despite prohibiting
from starting the engine at that time by the
husband of the applicant i.e. the appellant
and the mechanic Om Prakash but he did
not stop and started the engine from the
handle. Therefore, due to excessive speed
the wheel of engine was broken by which
the mechanic Om Prakash, Shri Pal of the
village and the deceased Shyam Narain
suffered serious injuries. They were got
admitted
in
the
Sadar
Hospital,
Lakhimpur, from where the doctors had
referred Shyam Narain to Lucknow
Medical College on 16.06.1996 where he
died on 17.06.1996. The information of
the whole matter was given by the
husband of the applicant at the Police
Station and now the brothers of the
deceased; Ram Vilas and Shyam Vilas S/o
Sambharu, on the instigation of other
rivals of the village, are harassing and
demanding Rs.15,000/- and threatening
that failing which they will capture their
2 All. Manju Chauhan Vs. Smt. Guddi Devi & Ors.
1297
land. This complaint, given by the wife of
the appellant, was proved by the appellant
in his evidence. The respondent-claimants
have also stated that after the accident they
had tried to settle the matter with
compromise but the appellant was not
ready, therefore they had filed the claim.
Therefore, the allegation in the application
also seems to be correct looking to the
evidence.

19. In the evidence the appellant has
specifically stated that he had called
mechanic Om Prakash S/o Sita Ram for
repairing engine (pumpset). After repairing
he was tightening the fan and told that
wheel is cracked and without changing the
same it would not be proper to run the
engine. But the deceased Shyam Narain
despite prohibiting had started the engine
and the wheel of engine was broken, on
account of which the mechanic Om
Prakash, deceased Shyam Narain and Shri
Pal of his village had suffered serious
injuries and subsequently Shyam Narain
had died. It has also been stated by him
that after the accident, the appellant had
brought the tractor trolley of Ram Gopal
of his village in which he had sent them to
Sadar Hospital, Lakhimpur.

20. Om Prakash S/o Sita Ram was
examined as DW-2, who has stated in his
evidence that he was working on the post
of operator in a farm. He was called by the
appellant for repairing his engine on the
date of accident. He also supported the
evidence given by the appellant.

21. On behalf of the respondentclaimants the respondent no.1, Guddi Devi
W/o the deceased Shyam Narain was
examined as PW-1. She is not an eye
witness. Though she stated her husband
knew the repairing of engine but further
stated that she does not know from where
he has learnt the same and her husband
had not opened any shop for repairing of
engine and she also does not know as to
where he used to go for repairing but
stated that he had gone to the place of the
appellant for repairing of the engine. She
has also stated that the respondentclaimants and her relatives tried to settle
the matter by compromise but the
appellant was not ready for it. Therefore
she has filed the claim.

22. PW-2, Ram Asrey stated that at the
time of accident he was at home and on
information he went on the spot and found that
the wheel of the engine was broken and the
deceased alongwith two others had suffered
injuries. But in the cross-examination he has
stated that he had gone to his field and on
coming back the information was given by his
wife. He has also stated that he knows Om
Prakash who works in farm and he is a
mechanic. In regard to Shyam Narain, he
stated that he does not know as to where he
learnt the repairing of engine though he had
seen him repairing the engine of one Bhajan
Singh of Rihua. He has also stated that the
deceased and he are of one caste. He is resident
of Azamgarh and the deceased of Mau and he
knows him.

23. PW-3, Nandu Ram has stated that
at the time of accident he was at home. On
receiving the information he also went at
the spot and saw that the deceased and two
others were injured and the appellant had
taken to the deceased from his tractor
trolley to Lakhimpur. In the crossexamination he has stated that he does not
know the date of accident and also as to
why Shyam Narain had gone. He also
stated that he is of the same caste of the
deceased and both are of the same district
of Azamgarh.
1298 INDIAN LAW REPORTS ALLAHABAD SERIES

24. In view of above, the evidence
given by the witnesses of the respondent
claimants is self contradictory and does
not prove that the deceased Satya Narain
was a mechanic of engine and gone to
repair engine of the appellant. On the other
hand it is evident from the evidence that
Om Prakash produced as DW-2 was a
mechanic who was repairing the engine of
the appellant. It is also evident from the
complaint given by the wife of the
appellant to the Superintendent of Police
on 22.06.1996 in regard to the harassment
by the brothers of the deceased after the
accident on 15.06.1996 and death of the
deceased on 17.06.1996, which has been
proved in the evidence of the appellant
that the engine was repaired by the
mechanic Om Prakash and not by the
deceased. The mechanic Om Prakash was
also examined in evidence as DW-2 and
admitted that he was repairing the engine.
In the cross-examination nothing could be
elicit to disbelieve the evidence. But all
these evidences have not been considered
and
discussed
by
the
learned
Commissioner before recording a perverse
finding in regard to issues no.1 and 2 and
holding that the deceased was in casual
employment of the appellant and he died
during employment therefore it is not
sustainable and liable to be set-aside.

25. Similarly, in regard to issue no.5
no finding has been recorded as to whether
the deceased Shyam Narain was himself
responsible for the accident and the
accident
had
occurred
due
to
his
negligence and only it has been stated that
it is clear from the statement of witnesses
available on the file that the accident had
occurred due to bursting of engine of the
appellant for which the deceased Shyam
Narain was not responsible. While there is
no evidence that the accident had occurred
due to bursting of engine and the accident
had occurred due to breaking of the wheel.
It also shows that the case has been
decided without application of mind at all.

26. The Hon'ble Apex Court in the
case of Shri Chintaman Rao & Another
Vs. the State of Madhya Pradesh; AIR
1958 SC 388 (Three judge Bench) has
held that the concept of employment
involves three ingredients: (1) Employer
(2) Employee and (3) the Contract of
Employment. The employer is one who
employs i.e. one who engages the services
of other persons. The employee is who
works for other for hire. The employment
is that contract of service between the
employer and the employee where under
an employee agrees to serve the employer
subject to his control and supervision.
Therefore,
unless
a
contract
of
employment between the deceased and the
appellant is proved he could not come
within the definition of workman and
unless the deceased come under the
definition of workman he is not entitled
for compensation under the Act of 1923.

27. In the present case the
respondent-claimants have failed to prove
that the deceased was a mechanic of
engine and in employment of the appellant
or there was any contract of employment
with him. Even calling to the mechanic
Om Prakash may only be an agreement for
service which may not be covered under
the Act. Therefore, the injuries suffered by
the deceased, on account of which he died,
can not be said at all to have been arose
out of and in the course of employment at
the time of accident.

28. The case of Valli, Minor
Sengottaiyan, Minor Neelambal and
Periyathayee Vs. Sidhan and Others
2 All. The New India Assurance Co. Ltd. Vs. Smt. Neelam Jaiswal & Ors.
1299
dated 29.02.2008 of the Madras High
Court, relied by the respondent-claimants
in which the accident had occurred on
18.03.1996, was allowed on the ground
that death arose out of and in the course of
employment and the work of claimant can
not be considered to be one of casual
nature
but
the
learned
Deputy
Commissioner had ignored the material
evidence on record. The court has also
observed that from the definition of word
'Workman' in section 2(1)(n) of the Act it
is seen that a person other than a person
whose employment is of casual nature and
who is employed otherwise than for the
purposes of employer's trade or business is
a workman as per the definition. Similarly,
the other case cited by the learned counsel
for the respondents of Kerala High Court
in the case of Kottayan Vs. Zacharia
Kurien @ Babu decided on 22.03.2014 is
also of no assistance because it is not
proved in the present case that the
deceased was a mechanic of engine and
employed by the appellant.

29. The Hon'ble Apex Court, in the
case of Smt. T.S. Shylaja Vs. Oriental
Insurance Company & Another; AIR
2014 SC 893, relied by the respondentclaimants, has held that the High Court
could not have, without adverting to the
documents vaguely referred to by it have
upset the finding of fact which the
Commissioner was entitled to record and
the High Court has neither referred to nor
determined any question of law much less
a substantial question of law in existence
whereof was a condition precedent for the
maintainability of any appeal under
Section 30, which can not be disputed.

30. In view of above discussion, this
court is of the considered opinion that the
respondent-claimants have failed to prove
that the deceased was a workman as per
the definition under Section 2(1)(n) of the
Act of 1923 and there was any relation of
employer and employee between the
appellant and the deceased. The findings
recorded by the learned Commissioner are
without application of mind and without
considering and appreciating correctly the
material and evidence on record, therefore
the same are not sustainable in the eyes of
law and liable to be set-aside.

31. Thus, the substantial questions of
law involved in this appeal are decided in
favour of the appellant and against the
respondent-claimants. Consequently, the
judgment and award dated 22.01.2004
passed in Case No.13/5/3/3/3/1/25 under
Section 22 of the Act of 1923 passed by
the
Workmen's
Compensation
Commissioner / Collector, Kheri is hereby
set-aside and the application filed by the
respondent-claimants is dismissed.

32. The appeal is, accordingly,
allowed. No order as to costs.
----------
(2020)02ILR A1299

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2020

BEFORE
THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 366 of 2005

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Neelam Jaiswal & Ors.
 ...Respondents

Counsel for the Appellant:
Anand Mohan, G.S. Chadha, H.S. Chadha,
I.P. Singh Chadha