B.P. Das, J.
1. This appeal' under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred; to as the 'Act') is at the instance of the insurer challenging the award passed by the Deputy Labour Commissioner and Commissioner for Workmen's Compensation, Rourkela (in short, 'the W.C. Commissioner).
2. The question of law that arises for consideration in this appeal is whether the deceased being engaged for one day to drive the vehicle of the owner can be construed to be a workman under the Workmen's Compensation Act.
3. The brief facts leading to this appeal are follows :
Respondent No. 2 was the claimant before the Commissioner for Workmen's Compensation claiming compensation for the death of her husband namely Bisen alias Biswanath Mahanta, who died in a motor vehicular accident. The case of the claimant before the W.C. Commissioner was that her husband was employed as a driver by present respondent. No.l. Mohan Kumar Sahoo of Naranpur, in the district of Keonjhar. On 27.12.1393 he received personal injury due to an accident arising out of and in course of his employment and while,he was being treated in the Government Hospital, Keonjhar succumbed to the injury on 4.1.1994. The claimant claimed for a sum of Rs. 1,00,000/-. The owner of the vehicle filed his written statement disclosing therein that the deceased Bisen alias Biswanath Mahanta was employed by him in his Bus bearing registration No. ORJ- 7401 only for a day, i.e., 27.12.1992 in absence of his regular driver and he was paid Rs. 70/- for that day as wages including food charges. On 27.12-1992 the said bus met with an accident being collided with a truck, ultimately resulting in the death of the deceased driver. There was no factual dispute that the vehicle was validly insured with the present appellant and the date of accident was covered under a valid insurance policy. The insurer also contested the proceeding before the W.C. Commissioner by filing written statement admitting the factum of valid insurance v of the vehicle in question disclosing the policy number, but it denied to accept the liability on several grounds, one of which being that it is not liable to indemnify the compensation as it had no knowledge about the employment of the deceased, his age, wages and more specifically there was absence of master and servant relationship between the insured and the deceased.
4. The W.C. Commissioner framed as many as three issues. The issue with which we are concerned is whether the deceased was a casual workman not entitled to compensation?
5. While answering the aforesaid issue, the W.C. Commissioner held that whether a workman is casual or regular depends upon the nature of job for which he is engaged and in this particular case, the job of the driver is regular one so far the trade or business of the employer is concerned.
6. According to the W.C, Commissioner, the very nature of the job of driver in this case is of regular or permanent type and the work]man engaged therein irrespective of his tenure of employment is a regular workman. Reason as stated by the W.C. Commissioner is that the owner cannot manage the vehicle without a driver. Basing upon the aforesaid reasoning, the W.C. Commissioner held that the deceased was not a casual workman and for his death due to an accident arising out of and in course of his employment, his dependants are entitled to compensation.
7. The fact of engagement of the deceased as a driver to drive the vehicle of the owner is not disputed, so also the fact that he was engaged for a day only.
8. Learned counsel for the appellant draws my attention to the provision of Section 2(n) of the W.C. Act, which defines workman1 as follows : Section 2(1)(n) runs as follows :
'(n) 'workman' means any person (other than a person whose employment is of a casual nature arid who is employed otherwise than for the purpose 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 or a railway and not employed in any such capacity as is specified in Sch.II, or
(ia) (a) a master, seaman or other member of the crew of a ship,
(b) a captain or other member of the crew of an aircraft,
(c).a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
(d) a person recruited for work abroad by a company, and who is employed outside india in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or
(ii) employed l{***) 2(***) in 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 of 3(the Armed Forces of the Union) 4(***). and reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.'
9. There is also no dispute that the driver is also specified in Schedule II of the W.C. Act. In this regard my attention was drawn to the decision reported in 61 (1986) C.L.T. 137 (Rebati Gantayat v. Haguru Sethi (and after him) Haramoni and Ors., wherein this Court held that there must be relationship of an employer and employee before a person can be said to be a workman vis-a-vis his employer. Once such relationship is established it has to be further analysed to find if the employment of the employee is of a casual nature and if he was employed for the purpose of employer's trade or business. He must be employed in such capacity as is mentioned in any of the items included in Schedule II. The driver is already included in the Schedule II. So this aspect does not require consideration.
10. But the learned counsel for the appellant relying upon the above cited decision submits that there is no relationship of an employer and employee for which there is no need of further going into the question whether the nature of employment of the employee was casual or not. In this regard my attention was drawn to a decision reported in AIR 1957 SC 264 (Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors.). That was a case under Section 2(s) of the Industrial Disputes Act, 1947, where the Court distinguished the expressions 'a contract for services' and 'a contract of services'. The said decision will be of no help to the appellant in the facts of the present case.
11. Learned counsel for the appellant further relied upon a decision of the apex Court reported in AIR 1941 Rangoon 61 (Ma Htwa Yin and Ors. v. Maung Thet Hnin), which was a decision dealing with Section 2(n) of the Workmen's Compensation Act. It was held in the said decision that the deceased was a mere licensee upon the mine, that he was paid by piece work rates for the work, which he did, and that there was no control over him by the mine authorities. So he was not a 'workman' within the meaning of the Act.
12. Learned counsel for the appellant draws my attention to another case reported in AIR 1936 Rangoon 89, In re., Workmen's Compensation of Jaglipathan. wherein it was held that a person working as a member of coolie gang in carrying out work in collaboration and partnership under a sub-contract is not a workman within the meaning of the Act. But dealing elaborately, in the aforesaid case it was held that in order to be a workman within the meaning of Workmen's Compensation Act, a person must be under a contract of service with some other person.
13. The contract of service, is a different test under the Industrial Disputes Act. In the case of Dharangadhra Chemical Works Ltd. v. The State of Saurashtra and Ors. reported in AIR 1955 Saurashtra 33, the High Court distinguished the expressions 'contract of service' and 'contract for service' while deciding a case under the Industrial Disputes Act and held that the crucial test to determine a contract of service is control by the master over the work of the servant and an obligation on the part of the servant to obey the orders of the master. So the basic thing which this Court is to find out is whether there was control of the owner of the vehicle over the deceased.
14. The fact as narrated in the judgment and award passed by the W.C. Court and also the written statement filed by the owner disclose that on certain terms he had engaged the deceased- driver to drive his1 bus. which is a passenger carrying vehicle and on the fateful date, he was working under him. This indicates that the owner had definite control over the deceased. He was driving the vehicle on the direction of the owner of the vehicle, may be, he was employed for a day only. His engagement for one day will not throw him out of the definition of workman under Section 2(n) of the W.C. Act. Section 2(n) further postulates that the persons excluded from definition are those whose employment is not only of casual nature, but who are employed otherwise than for the purpose of the employer's trade or business.
15. A Division Bench of Kerala High Court in 2001 (3) TAC 280 (Ker.), Secretary, Trivandrum Port and Headload Workers, Co-operative Society Ltd. v. Dhanesh Kumar alias Thampi and Anr. considered a similar question and relying on a decision of the Madras High Court in the case of K. K. Saraswathi v. Narayanaswami. reported in 1985 A.C.J. 38 : 1958(1] T.A.C. 233, held that a person employed only for 2 or 3 days as a substitute driver for a lorry would be a workman under Section 2(1)(n) of the Act.
16. From a reading of the aforesaid decisions, the legal position that emerges is that even if there is no employer- employee relationship with the principal employer, a substitute can be a workman if he is engaged for the service of the principal employer, and he is occupied in the performance of work or duties for the principal employer or if he is retained for the service of the principal employer.
17. The case at hand, stands on a better footing because there is direct relationship between the employer and the deceased. The evidence in that regard goes unimpeached. The owner had admitted to have engaged the deceased and directed him to drive his vehicle which means, the deceased was engaged in the service of the employer and died while performing the work and duty for his employer. It was proved that he was retained for the service of the employer, which is the paramount consideration.
18. Even assuming that the deceased's employment on that day was of a casual nature, that by itself is not enough to push him out of the ambit of the definition of 'workman' because the casual nature of his engagement must couple with the definition that such employment should not be for the trade or business of the employer. In the present case, the deceased was engaged by the employer for the purpose of performing duties for the employer and the accident so occurred can safely be construed to be in course of his employment.
19. In view of the facts stated above, there is no merit in this appeal and the same is accordingly dismissed.
Out of the awarded amount. Rs. 60,000/- shall be kept in a fixed deposit in the name of the claimant for a period of five years and the balance amount shall be paid to her by way of an account payee cheque. It is stated that the awarded amount has been deposited after the expiry of thirty days. The insurer is directed to pay the interest as provided under the Workmen's Compensation Act from the date of award till the date of deposit. The interest component will be deposited within a period of six weeks. On depositing the interest component, the entire interest component shall be kept in a non-encumberable fixed deposit in the name of the claimant for five years.