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Judgment
V. Periya Karuppiah, J.—This appeal is directed against the order passed by the Commissioner for Workmen Compensation-II, Chennai,
in W.C. No. 153 of 2000 on 24.7.2001 in dismissing the claim of the deponents holding that the deceased person was not attracted u/s 2(n)(1) of
the Workmen''s Compensation Act (hereinafter referred to as ''the Act'') as on the date of accident viz., 15.3.2000.
The deceased Rajesh aged 20 years at the time of the accident was employed as a Driver of the car TSI-5402 owned by the 1st Opposite
Party and insured with the 2nd Opposite Party, on a monthly salary of Rs. 3000/-. On 15.3.2000, when the said Rajesh was driving the said car
from Thirunindravur to Bangalore and near Mambakkam Village, a vehicle coming in the opposite direction hit against the car and in the accident,
the deceased Rajesh sustained multiple head injures and died on the spot. The deceased was not a workman but he was a causual labourer and
was not in connection with the trade or business of the Ist Opposite Party.
The learned Counsel for the appellants/claimants of the deceased person would submit in his argument that the accident had happened on
15.3.2000 when the deceased Rajesh was employed as a Car Driver with the 1st Opposite Party and was driving the car belonging to the 1st
Opposite Party from Madras to Bangalore at Mambakkm Village, Sri Perambudur, a lorry dashed against the car and in the said accident, the
deceased died on the spot. The learned Counsel for the appellants would further submit that the Commissioner for Workmen''s Compensation had
come to the conclusion of dismissing the application as not maintainable on the assumption that the claim of compensation under the provisions of
Workmen''s Compensation Act, does not arise as the deceased Rajesh was not employed for the purpose of employer''s trade or business as
mentioned in the definition of ''workman'' and the said decision is not correct. He would further submit in his argument that the said definition of
''workman'' u/s 2(n)(i) of the Act would include even casual labourers and the persons who are not connected with the ''trade'' or ''business'' of the
employer since the said definition was amended as per Act 46/2000 and therefore, the Act being a beneficial Act, the said amendment should have
been deemed to have come into force from the date of enactment and the cases pending on the date of amendment are benefitted by the said
amendment and therefore, the Commissioner for Workmen Compensation is wrong in holding that the deceased Rajesh is not a ''workman'' under
the definition of the Act, since he had not explained that he was appointed as a Driver for the purpose of trade or business of the First Opposite
Party.
On the other hand, the learned Counsel appearing for the 2nd respondent would submit in his argument that the deceased Rajesh was not a
workman"" under the definition of Workmen''s Compensation Act, since he was not employed for the purpose of trade or business of the
employer and on the date of accident viz., 15.3.2000, the Workmen''s Compensation Act was not amended as per the Amendment Act 46/2000
since it had come into effect only on 8.12.2000 and therefore, the previous definition of ""workman"" u/s 2(n)(i) of the Act is only applicable and the
Commissioner for Workmen''s Compensation is quite right in holding that the deceased Rajesh was not a ""workman"" as defined u/s 2(n)(i) of the
Act and the Commissioner for Workmen''s Compensation had rightly dismissed the petition. He has also further submitted that the appeal has been
vexatiously filed and therefore, it has to be dismissed with costs. He would cite an authority in support of his contention reported in P. Galireddy
and another Vs. Chinna Ramaswamy Goud and others, .
Considering the arguments advanced by either side, we have to find out whether the deceased Rajesh who drove the vehicle on the fateful day
i.e 15.3.2000 was attracted under the definition of ''workman'' as defined in Section 2(n)(i) of the Act. For that purpose, we have to extract the
definition of Section 2(n)(i) of the Act and it reads as follows:
2(n)(i) a railway servant as defined in (Clause (34) of section 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 [(i) (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]
On a careful perusal of the said provision, we could see that a driver recruited by the employer can easily be coming under the definition of
workman"". But the contention of the learned Counsel for the respondent would be that on the date of accident i.e 15.3.2000, the definition of
workman contains the words 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 purpose of
employer''s trade or business
Therefore, we have to see whether the unamended Section 2(1) of the Act as on 15.3.2000 is applicable or the amended provision of Section 2(n)
as amended by Act 46/2000 which came into effect from 8.12.2000 is applicable. In the Amendment Act 46/2000, it is not mentioned whether
the amendment has got retrospective effect. For that purpose we have to see the decision of the Hon''ble Supreme Court as to the retrospective
effectiveness of the amended act, in the judgment rendered by the Constitution Bench as reported in Shyam Sunder and Another Vs. Ram Kumar
and Another, . The relevant judgment and its proposition referred in the above judgment in paragraph - 42 runs as follows:
In Keshavlal Jethalal Shah v. Mohanlal Bhagwandas this Court while interpreting Section 29(2) of the amending Act, held thus: (AIR p.1339, para
8)
An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2)
before it was enacted was precise in its implication as well as in its expression; the meaning of the words was not in doubt, and there was no
omission in its phraseology which was required to be supplied by the amendment.
Yet another passage referred by in the judgment of the Supreme Court cited above viz. Shyam Sunder and Another Vs. Ram Kumar and Another,
is from R. Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives),
which reads as follows:
In R. Rajagopal Reddy v. Padmini Chandrasekharan it was held thus: (SCC Headnote)
Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it
does not create new rights or obligations. If a statute is curative or merely declaratory of the previous law retrospective operation is general
intended.... A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the
Constitution came into force the amending Act also will be part of the existing law. If a new Act is to explain an earlier Act, it would be without
object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the
meaning of the previous Act.
After discussing those judgments, it has been held by the Hon''ble Supreme Court as follows in para-44:
From the aforesaid decisions, the legal principle that emerges is that the function of a declaratory or explanatory Act is to supply an obvious
omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act.
On a careful perusal of the aforesaid proposition of the Constitution Bench of the Hon''ble Supreme Court of India, we have to see whether the
amendment sought to be introduced in the Amendment Act is clarificatory amendment or explanatory one. In the amending Act, the explanation of
workman"" has been clarified by the omission of the words ""workman means any person 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"" for the purpose of including the actual workers as
well as the workmen who are connected with trade or business and therefore, it is a clarificatory amendment. The clarificatory amendment of this
nature will have retrospective effect and therefore, if the principal Act was existing law when the Constitution came into force, the amending Act
will also be part of the existing law. Therefore, the amending Act 46/2000 was even though mentioned as came into force on 8.12.2000, it has got
retrospective effect from the date of the Principal Act viz., the Workmen Compensation Act, 1923, as per the dictum laid down in the aforesaid
judgment of our Supreme Court.
Apart from the above judgment, the High Court of Kerala in a case reported in Oriental Insurance Company Ltd. Vs. Asokan, held that the
benefit conferred on Workman u/s 4 of the Workmen''s Compensation Act as amended by Act 30 of 1995 is available on the date when the case
is finally adjudicated. In the said judgment the decision of the Hon''ble Supreme Court in C.A. No. 16904 to 16909 of 1996 to the effect that if
any benefit was conferred on workman (by an amendemnt of the Act) and was available on the date when the case was finally adjudicated, the
said benefits should be extended, was followed and the benefits of the Amended At was made available to the workman in pending case and the
Court also held that it was just and proper. The relevant passage from the judgment of the Hon''ble Supreme Court, which the Kerala High Court
quoted in its judgment run as follows:
We are finally determining the rights of the workmen today. The Act is a special legislation for the benefit of the labour. Keeping in view the
scheme of the Act we are of the view that the only interpretation which can be given to the amendment is that if any benefit is conferred on the
workman and the said benefit is available on the date when the case is finally adjudicated, the said benefit should be extended to the workmen.
We, therefore, hold that the compensation to be paid to the heirs of the workmen has to be calculated on the basis of the actual wages-Rs. 1800/-
drawn by them.
So far as this case is concerned, the deceased Rajesh met with an accident as the Driver of the 1st Opposite Party on 15.3.2000 and on that
date, the amendment Act 46/2000 was even though not introduced, but was in force due to its retrospectiveness effect and he would come under
the definition of ''workman'' after the amendment of the said provision. Therefore, the learned Commissioner for Workmen Compensation ought to
have considered the deceased Rajesh as Workman of the 1st Opposite Party and dealt with the case for the grant of compensation. The
Commissioner, Workmen Compensation has not even found the quantum of compensation payable to the dependents of the deceased Rajesh, the
appellants herein, but had simply dismissed the petition on ground of maintainability. The dismissal of the petition for compensation before the
Commissioner for Workmen Compensation filed by the appellants herein is erroneous and therefore, the order passed by the Commissioner,
Workmen Compensation- II, Chennai made in W.C. No. 153 of 2000 is liable to be set aside and the appeal is liable to be allowed. Since the
Commissioner for Workmen Compensation has not found any quantum of compensation payable to the appellants herein, the matter has
necessarily to be remanded back to the Commissioner, Workmen Compensation for fresh disposal after giving opportunity to both parties to
adduce evidence and to find out the quantum of compensation payable to the appellants/claimants and to dispose of the case in accordance with
law.
In the result, the appeal is allowed and the order made in W.C. No. 153 of 2000 by the Commissioner, Workmen Compensation is set aside
and the Commissioner, Workmen Compensation -II, Chennai is directed to give notice to both the parties to appear before him immediately after
the receipt of this order and to dispose of the case after giving opportunity for both parties within one month from the date of their appearance.
With the aforesaid direction, the appeal is allowed with costs.