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Judgment
Mohd. Yaqoob Mir, J.—Compensation amounting to Rs. 21,38,721/- awarded in favour of the Respondents 3 to 7 by the Commissioner,
under Workmen's Compensation Act (Assistant Labour Commissioner) Baramulla vide its judgment dated 15.07.2003 is challenged on two
counts:
Firstly, that the five potters who died do not fall within the definition of 'Workmen' under Workmen's Compensation Act. Secondly, all the five
porters lost their lives while getting buried under the avalanche so it was an 'Act of God'; therefore, Appellants are not liable to pay any
compensation.
Admittedly, five porters (deceased) were employed by the Appellants for carrying load to BP Post, Malangam. On 10.12.2001, on their way
while carrying the load of the Appellants got buried under an avalanche in Wangaam Nallah so died in course of the employment of the Appellant.
It is also admitted fact that the five porters were in the employment on daily rated basis of Rs. 65/- per head. The dependants i.e. Respondents 3
to 7 claimed compensation under the Workmen's Compensation Act hereinafter for short referred to as 'the Act'.
In terms of Section 30 of 'The Act', appeal can be maintained only when the substantial question of law exist for consideration, whether, porters
were workmen or not can be termed as substantial question of law. In the facts and circumstances of the case needs no reply as porters were
admittedly employed by the Army for carrying the load on daily wage basis. They can not in any way be termed to be the permanent employees of
the Army who otherwise get compensated under the Service Conditions in vogue.
The legislative Intent as flow from Section 30 of the 'Act' is that the workers are protected against the protracted litigation and it is in that
backdrop pre-condition in terms of Section 30 of the 'Act' is that there shall be a substantial question of law for maintaining the appeal. 'Substantial
question of law' as occur in Section 30 of the 'Act' has been dealt with by the High Court of Kerala in the judgment captioned N.L. Lalan v. V.A.
Jhon reported in 1972 A.C.J 248 which is quoted as under:
....There must be something substantial about a substantial question of law. Out of deference to the words of the statute I must remind myself that
what is contemplated is not a question of law alone; it must also possess the attribute of substantiality. If it is of great public importance or if it
arises so frequently as to affect a large class of people or is so basic to the operation of the Act itself, one may designate the question of law as
substantial. But, where it is covered already by precedents or the law on that aspect is well settled, the mere difficulty of applying the facts to that
law cannot make it a substantial question of law.
The position of the deceased porters being workmen as defined u/s 2 (1) (n) of the Workmen's Compensation Act is further supported by the
communication bearing No. 45332/2/MP-4(civ)(d)/190/07/D(civ) Government of India, Ministry of Defence New Delhi, dated 09.04.2007, copy
of which is placed on record wherein it is shown that the potters and Drivers of Civil owned animals (Yak/Pony/Donkey and Mule) are to be
governed by the terms and condition for the purpose of compensation under Workmen's Compensation Act subject to certain limit. It clearly
indicates that the porters are the workmen so are entitled to the compensation under the Workmen's Compensation Act irrespective of the
maximum of Rupees two lakhs as incorporated in the communication.
The next contention of learned Counsel that the death of the porters is due to the 'Act pi God' as they died under the avalanche has been
properly taken care of the impugned judgment. It is to be borne in the mind that admittedly porters were carrying load and in the process fell prey
to the avalanche while carrying the load of their employer they got exposed to the area where they got buried under an avalanche. The deceased
porters admittedly were exposed but no safety measures were prescribed when it is so nothing can be attributable to willful removal or disregard
by the workmen of any safe-guard as ordained by Section 3 (1) (b) (iii) of Workmen's Compensation Act.
No substantial question of law exist for consideration, therefore, on that score appeal is incompetent. The judgment impugned being well
reasoned is up held.
The awarded amount of Rs. 21,38,721/- as per record is shown to have been deposited in this Court on 06.10.2006. The said amount
alongwith interest as may have accrued thereon shall be paid to the claimants i.e. Respondents 3 to 7 strictly in terms of the judgment of
Commissioner, Baramulla.
Appeal dismissed. No order as to costs.