Judgment:
A.G. Qureshi, J.
1. This miscellaneous appeal has been filed by the appellant aggrieved by the judgment passed by the court of Commissioner for Workmen's Compensation, Indore, (hereinafter called 'the lower court') in Case No. 540 W.C. Act/77/Fatal, dated September 21, 1981.
2. The facts leading to this appeal, in short, are that the respondents had filed an application under Section 10 of the Workman's Compensation Act, 1923 for compensation for the death of Shankerlal from the present appellant Champalal on the ground that the deceased Shunkerlal died because of an accident arising out of and during the course of employment of the appellant on June 22, 1988. The deceased Shankerlal was a workman employed by the appellant for constructing a well. He was getting wages at the rate of Rs. 150/- per day. The respondents being heirs and dependents of the deceased are entitled to the compensation of Rs. 21,000/- from the appellant as per law.
3. The appellant denied the fact that the deceased died during the course of employment of the appellant. According to him the deceased Shankerlal was not a workman within the meaning of the Workmen's Compensation Act. As such no accident arising out of and during the course of employment took place. According to the appellant the deceased has taken the contract of digging a well for Rs. 2,500/- and there was an agreement in writing to that effect. It was for the deceased to engage labour for the completion of the work and make payments to them. The non-applicant was required to supply only the construction materials for the construction of the well. It was also denied that the deceased was engaged as a labourer on wages of Rs. 150 per day.
4. On the aforesaid averments the learned lower court framed seven issues and held that the deceased Shankerlal was a workman within the meaning of the Workmen's Compensation Act and the death of the deceased Shankerlal occurred as a result of an accident arising out of and during the course of employment and the applicants were the dependants of the deceased and accordingly the respondents were held entitled to get compensation of Rs. 18,000. Aggrieved by the aforesaid judgment the appellant has preferred this appeal.
5. The learned counsel for the appellant Mr. Samvatsar argues that from the evidence on record it is manifest that the deceased Shankerlal was not a workman, but a contractor and the document Exh. D-l shows that a contract was taken by the deceased. The learned lower court has erred in construing the contract as an agreement for labour and treating the deceased as a workman.
6. On the other hand the learned counsel for the respondents, Mr. Rajpal argues that the learned lower court has rightly held that the deceased was a workman in view of the fact that the contract was a labour contract under which the deceased was supposed to work himself and to get the work done through others.
7. Both the learned counsel have placed reliance on the case of Dharangadhra Chemical Works Ltd. v. State of Saurashtra, 1957-I-LLJ-477 wherein the Supreme Court has held as under (pp. 483-484):
'The broad distinction between a workman and independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is, therefore, a workman does not cease to be such by reason merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status.'
8. In the light of the aforesaid judgment it is crystal clear that when a workman even though he may take a contract, i.e., payment in lump sum for the amount of work done, would not cease to be a workman only by virtue of the contract if he agrees to work himself. It is also manifest that if once a person agrees to work himself and works in accordance with the agreement, then merely because he gets other persons also to work with him and those persons are controlled and paid by him would not have the effect of treating such workman as a contractor under the law. As such the crucial test is that if a person agrees to work personally then he is a workman, but if he does not work personally and gets the work done from others, then he is an independent contractor. Undisputedly in the instant case the respondent had agreed to work himself and the accident was also caused because he was also working himself. Therefore, the fact that he also agreed to get assistance of other workers in the contract would not change his position and he shall not cease to be a workman only by virtue of entering into a contract to seek the assistance of other workmen also along with his work.
9. Now in the instant case it is not disputed that, vide Exh. D-l, the contract relied upon by the appellant himself, the deceased Shankerlal had agreed to work himself towards the performance of the contract. As such the learned lower court has rightly held that the deceased Shankerlal was a workman and that he met with an accident during the course of employment of the appellant. I am of the opinion that the judgment impugned is proper and does not call for any interference.
10. The appeal of the appellant is accordingly disallowed and dismissed with costs. Counsel's fee Rs. 100/-.