The Commissioner erred in awarding compensation to the respondent as Farid Khan was not a workman within the meaning of the Workmen's Compensation Act, 1923, and the amount of compensation was not properly determined.

Sarjoo Prasad, J.

1. This is an appeal under Sec.30, Workmens Compensation Act (VIII [8] of 1923) preferred on behalf of the employer against whom an award of compensation has been made by the Commissioner appointed under the Act. The appellant has been directed to pay a sum of Rs. 2,400 by way of compensation to the respondent who happens to be the widow and dependent of the deceased Farid Khan said to be a workman employed by the appellant.

2. The facts giving rise to this appeal are that Farid Khan, the husband of the respondent, Mt. Mariam, was employed as a mason by the appellant in construction of a building The case of the appellant is that this building was a residential building, the appellant himself being a trader in mica. The said mason was employed on a wage of Rs. 2/8 per day. He had worked for five or six days on the said construction, when he fell down from the roof of the house which was under construction and received injuries as a result of which he subsequently died by midnight of the same day. This unfortunate incident happened on 4-12-1948. On 5-12-1948, the appellant informed the police about the death of the respondents husband, and on 14-12-1948, the appellant is said to have paid a sum of Rs. 1900 and another sum of Rs. 500, in all Rs. 2,400 to the respondent for which he obtained a receipt duly signed by her. This receipt is dated 14-12-1948, and has been produced by the appellant. It shows that the widow received Rs. 2,400 by way of compensation and by agreement waived all claims against the appellant for compensation The respondent Mt. Mariam does not specifically dispute the genuineness of the receipt but she alleges that she received only a sum of Rs. 500 on the death of her husband and was not paid any more money. It appears that the police thereafter submitted a final report in which they stated that Farid Khan wag working as a mason over the building of the appellant and he fell down from the roof of the building which is 14 high from the level of the ground while he was setting bricks on the northern wall of the building. The report also shows that Mt Mariam is alleged to have been paid Rs. 500 out of a sum of Rs. 2,400 and it was further reported that the proprietor might be asked to pay compensation to the widow. On this report, it appears that a proceeding for payment of compensation under the Workmens Compensation Act was started and subsequently on 23-12-1949, a petition was also filed on behalf of the respondent claiming compensation to the tune of Rs. 2,000 On this application having been filed which was, as the Commissioner says, to "regularise the demand," the appellant was ordered by an order dated 27-12-1949, to deposit the amount into the sub-treasury which may be found on calculation payable to the widow of the deceased, the respondent in this appeal.

3. This appeal has been accordingly filed against the order of the Commissioner, dated 27-12-1949, which purports to be an order awarding compensation. Now, Sec.30 (1) (a), Workmens Compensation Act is that an appeal shall lie to the High Court from an order of the Commissioner awarding as compensation a "lump sum." The order does not indicate that any lump sum has been fixed in the order in question, but there is no order on the record showing that any lump sum had been fixed except the previous order in which tentatively the appellant had been asked to deposit a sum of Rs. 2000 by way of compensation. The appellant submits that in pursuance of this order dated 27-12-1949, a sum of Rs. 3400 calculated to be payable as compensation he has bean called upon to deposit. Therefore the defect in the form of the order cannot deprive him of a right to appeal which is available to him under the law. There is no doubt that this appears to be the final order passed in the case, and although the order is defective in form, yet the appellant cannot be deprived of his statutory right of an appeal on account of this defect in the garb in