A person is not a workman within the meaning of the Workmens Compensation Act, 1923, unless he is employed in a capacity specified in Schedule II of the Act. Notice of an accident is required under the Act, and failure to give notice can only be condoned if the court is satisfied that the employer had knowledge of the accident from other sources at or about the time it occurred, or if there were sufficient grounds for failure to give notice. Medical certificates are hearsay evidence and cannot be relied upon to establish incapacity or disablement unless the parties agree to be bound by them.

HARRIES, C.J. :- This is an appeal by the employer from an order of the Commissioner for workmens compensation awarding the respondent a sum of Rs. 441 together with certain costs as compensation in respect of an accident.

2. The workmans case was that he was employed by the appellant to load certain bricks into a lorry, to travel with the lorry and unload the bricks on arriving at the lorrys destination. It is said that whilst the respondent was travelling in this lorry on some day about seven months before the hearing before the Commissioner, the lorry travelling along a narrow path overturned. The workman who was travelling on the lorry, it is said, was thrown into a tank along side this narrow pith and was injured by bricks from the overturned lorry falling upon him. The workmans case was that he sustained injuries in the chest and on left hand, left knee and waist.

3. The appellant denied that the respondent was a workman within the meaning of the Act and he denied that there was any accident or that be had notice of any accident.

4. Evidence was called before the Commissioner upon which ho held that the respondent had been injured by accident arising out of and in the course of his employment and assessed the compensation at the sum of Rs. 441 for partial disablement.

5. A number of grounds have been taken in this appeal and it appears to me that the judgment of the Commissioner for workmens compensation cannot possibly be maintained on any ground whatsoever. The learned Commissioner has proceeded to decide this case without any reference whatsoever to the provisions of the Act.

6. In the first place, the Commissioner has decided that the respondent is a workman. In ordinary parlance, the respondent was clearly a workman; but for the purposes of workmens compensation he must be a workman as defined in the Act. Section 2(n) defines "workman" 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 purposes of the employers trade or business) who is

(ii) employed on monthly wages not exceeding four hundred rupees, in any such capacity as is specified in Schedule II".

7. Schedule II specifies a large number of capacities in which the persons who are employed are workmen within the meaning of the term as used in the Workmens Compensation Act.

8. The learned Commissioner appears to have thought that the case of the respondent fell within cl. (XXVI) of sch. II of the Act. That clause provides that a person

"employed in the handling of transport or goods in or within the precincts of,

(A) any warehouse or other place in which goods, are stored and in which on any one day of the preceding twelve months ten or more persons have been so employed; or

(B) any market in which on any one day of the preceding twelve months one hundred or more persons have been so employed."

9. All the evidence amounted to was that this man was employed to load bricks into a lorry and to unload them. Where this loading took place was not stated, and there was no evidence at all that the handling of these bricks or the transport of these bricks took place in or within the precincts of any warehouse or market or in any place, in any warehouse or other place where on any one day of the preceding twelve months ten or more persons had been employed, or in or within the precincts of any market in which one hundred or more persons had been employed on any day within the preceding twelve months. How the learned Commissioner could have held that this man was a workman within the meaning of cl. (XXVI) of Sch. II upon the evidence I am wholly unable to say. It is quite clear that there was no evidence at all upon which it could be held that the respondent-applicant was a workman and therefore he could not have obtained any compensation under the Act.

10. A point was also taken by the appellant by way of defence that no notice of the accident had been given by the respondent and an