JUDGMENT :

VENKATA JYOTHIRMAI PRATAPA, J.

1. This Civil Miscellaneous Appeal is preferred against the impugned order dated 18.11.2010 in W.C. No. 7 of 2010 on the file of the Commissioner for Workmen’s Compensation Act and Deputy Commissioner of Labour, Nellore (hereinafter be referred to as “Commissioner”).

2. This appeal is an aftermath to a claim before the learned Commissioner by one K.Appala Swamy (Respondent No. 2) under the Workmen’s Compensation Act, 1923 (for short ‘the Act’) seeking compensation for the injuries sustained during the course of employment under the owner/Opposite Party.

3. The case of the applicant in brief is that, he met with an accident while he was on duty and travelling in Coromandel Express No. 2841/2842 selling consumer commodities of the establishment-K.M.A. Caterers. When the train reached Bitragunta railway station, the train stopped and in order to sell the commodities, he moved between the compartments and fell down from the train and lost his two hands. Thereafter, he approached the Opposite Party for compensation but failed to receive any, he then approached the Human Rights Commission, where he was directed to file a claim petition before the Commissioner under the Act.

4. The learned Commissioner framed the following issues:

1. Whether the accident victim person K. Appala Swamy is employer under the Opposite Party?

2. What is the compensation the employer has to pay?

5. During the course of enquiry, on behalf of the applicant, K. Appala Swamy was examined as AW-1 and Exs.A1 to A7 were the documents marked. No evidence adduced on behalf of the Opposite party. Having heard the arguments of both sides and on appreciation of the evidence on record, the learned Commissioner awarded the compensation of Rs.5,20,584/- in favour of the injured as against the Opposite Party with a direction to deposit the amount within 30 days.

6. The Opposite Party, having been aggrieved by the order impugned, preferred the present appeal by raising the following substantial questions of law:

(1) Whether in the facts and circumstances of the case, the 1st respondent was justified in awarding compensation to the claimant despite the fact that the claimant was found to be working on casual basis as admitted by him in the cross examination contrary to the law laid down by the Apex Court while dealing with Section 2(1)(n) of the Workmen’s Compensation Act, 1923?

(2) Whether the 1st respondent is justified in placing burden on the employer to prove the quantum of wages drawn by the claimant though no evidence has been adduced by the claimant in support of the alleged quantum of salary drawn by him?

(3) Whether the 1st respondent is justified in awarding the compensation overlooking the aspect that the accident occurred on account of the negligence on the part of the claimant and the employer cannot be mulcted with liability in such a situation?

7. Heard learned counsel on both the sides. Perused the material available on record.

8. Learned counsel for the appellant submitted that, in the light of the judgment of the Hon’ble Apex Court in Central Mine Planning & Design Institute Ltd. Vs. Ramu Pasi , (2006) 1 SCC 377 casual labour is not covered by the expression ‘workman’ as defined in Section 2(1)(n) of the Act., hence the claim petition before the learned Commissioner is not maintainable. Per contra, the learned counsel for respondent would submit that the order impugned is sustainable under