G. Yethirajulu, J.
1. The District Manager Food Corporation of India, Kancharapalem of Visakhapatnam preferred this appeal challenging the order of the Commissioner, Workmen's Compensation in W.C.No. 11 of 1996 dated 5-2-1997.
2. The brief averments of the claim petition are as follows:
The petitioner is the wife of the deceased by name G. Rama Rao. The deceased was employed by the Food Corporation of India ('the Corporation' for brevity) as an electrician and was undertaking the job of electrical work in FCI Godowns, Kancharapalem. The deceased worked as an electrician under the respondent since 1986 and was paid wages at Rs. 50/- per day. On 15-7-1994 at about 10-30 a.m., while the deceased was working on the electric poles of the Corporation Godown, he was electrocuted and due to that he fell down from the pole, received injuries and died while undergoing treatment in the hospital. He was aged about 31 years by the date of accident and was expecting regularisation of his service with the Corporation.
3. The accident occurred while the deceased was on duty and he died in course of his employment. A notice of the accident was served on the respondent-Corporation on the same day and also through a lawyer notice dated 26-10-1995 which was received by it on 31-10-1995. The respondent did not pay any compensation to the petitioner. Therefore she requested to award a sum of Rs. 83,192/- towards compensation under the Workmen's Compensation Act, 1923 ('the Act' for brevity) with interest at 12% per annum.
4. The respondent resisted the claim contending that the application is not maintainable under law, that there was no relationship of employer and employee between the respondent and the deceased, and there was no post of electrician in the Corporation. The deceased was never appointed or worked as electrician and no payment was made to him either towards wages or salary, as stated by the claimant. There is no liability for the opposite party to pay any compensation. The petition is therefore liable to be dismissed with costs.
5. The Commissioner, Workmen's Compensation, Visakhapatnam on the basis of the above pleadings framed the following issues for determination:
(1) Whether the deceased worked as an electrician in opposite party's organisation and he met with an accident during the course of his employment?
(2) Whether he was paid Rs. 50/-per day as wages?
(3) Whether his age was 30 years at the time of accident?
(4) Whether the O.P. is liable to pay compensation to the applicant?
6. After taking into consideration the evidence of A.Ws.1 to 3 adduced on behalf of the claimant and Exs.A.1 to A.5 marked on behalf of the claimant, and R.W.I examined on behalf of the Corporation, the Commissioner came to the conclusion that there was employer and employee relationship between the deceased and the Corporation, that the petitioner is entitled for a sum of Rs. 83,192/- towards compensation with costs and interest @ 12% per annum.
7. The respondent-Corporation being aggrieved by the order of the Commissioner preferred this appeal challenging its validity and legality.
Point :
8. The learned Counsel for the Corporation during the course of arguments submitted that there was no employer and employee relationship between the Corporation and the deceased, that the claimant failed to issue notice under Section 10 of the Act making the claim for compensation, that under Section 4A(3) ofthe Act the claimant is entitled to interest only @ 6% and not @ 12% per annum. The learned Counsel further submitted that since there was no relationship of employer and employee between the Corporation and the deceased, the petition itself is not maintainable and the claimant is not entitled for any compensation.
9. The petitioner who is the wife of the deceased reiterated her stand in her evidence as AW.1 that her husband was working in the Corporation as a daily wager nearly since 10 years prior to the date of his death and in support of her contention she filed a bunch of muster rolls - Ex.A.3 given to the deceased to show that her husband was working with the Corporation as a daily wager and getting Rs. 50/- per day.
10. A.W.2 who is acquainted to the deceased also stated that the deceased was electrocuted while working on the electric pole of the Corporation.
11. A.W.3 a woman by name Narayanamma, a casual labour working in the Corporation since 15 years, also deposed that the deceased used to work as an electrician in the Corporation and she knows him since 15 years and he died on account of the electric shock received by him on the pole.
12. The muster rolls (Ex.A.3) filed by the petitioner are supporting the version of the claimant that the deceased was working with the Corporation since a considerable time as daily wager.
13. The learned Counsel for the Corporation submitted that even if it is considered that the deceased worked as a daily wager, he will not come within the definition of workman as defined under Section 2(1)(n) of the Act.
14. Section 2(1)(n) of the Workmen's Compensation Act, 1923 reads 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--
(i) a railway servant as defined in Clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989), 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
(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 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 the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them.
15. The wording used in the definition indicate that a person employed for the purpose of employer's trade or business comes within the definition of the workman.
16. A single Bench of this Court presided over by Justice A.S. Bhate (as he then was) in Divisional Engineer, Telecommunications, Srikakulam v. I. Sankara Rao, 1998 (6) ALD 194, held that a driver engaged by the Telecommunications Department on daily wages to drive its lorry also come within the definition of workman under Section 2(1)(n) of the Act. Following the above judgment, another single Bench of this Court presided over by my learned brother Justice N.V. Ramana in P. Gali Ready and Anr. v. Chinna Ramaswamy Goud, : (2002)IVLLJ332AP , held that if the workman is injured while working on a machine being run on a trial basis, he can be said to be engaged in the trade or business of the unit and therefore can be said to be a workman within the definition of Section 2(1)(n) of the Act.
17. It is made out from the facts that the deceased was working with the Corporation since long time on daily wages. In the light of the decisions referred supra, I have no hesitation to hold that the deceased who worked as electrician on daily wages with the Corporation comes within the definition of 'workman' as defined in Section 2(1)(n) of the Act
18. The learned Counsel for the Corporation submitted that the petitioner failed to issue notice to the respondent as prescribed under Section 10 of the Act demanding compensation on account of the demise of the deceased. Therefore, the claim petition is not maintainable.
19. On verification of the record, it is noticed that the petitioner issued a legal notice to the respondent which was acknowledged by the authorities of the Corporation. This itself is a clear indication that the statutory requirement under Section 10 has been complied with. Therefore, I do not find any force in the contention of the learned Counsel for the Corporation in this regard.
20. Regarding the rate of interest, the learned Counsel for the Corporation submitted that the Commissioner, Workmen's Compensation, Visakhapatnam is not entitled to award more interest than what was prescribed under Section 4-A(3) of the Act.
21. Section 4-A(3) of the Act as it stood prior to the amendment in the year 1995 reads as follows:
4-A. Compensation to be paid, when due and penalty for default:--
(1) xxx
(2) xxx
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty.
22. The learned Counsel for the claimant conceded that the Act prior to amendment dated 15-9-1995 prescribe a rate of interest at 6% per annum. Therefore, the Court may consider the aspect regarding the rate of interest to be awarded to the claimant.
23. In the light of the provisions of Section 4-A(3) of the Act, prior to amendment dated 15-9-1995 and as the death was prior to amendment, I am of the view that the Commissioner, Workmen's Compensation granted interest beyond the scope provided under the Act. Therefore, I am inclined to accept the plea of the learned Counsel for the Corporation and reduce the rate of interest awarded by the Commissioner, Workmen's Compensation, Visakhapatnam from 12% to 6% per annum.
24. In the result, the appeal is allowed in part. The compensation awarded by the Commissioner, Workmen's Compensation, Visakhapatnam is confirmed with a modification in the rate of interest by reducing the same from 12% to 6% per annum. Each party to bear its own costs.