The central legal point established is that the claimants cannot approach the Commissioner under the Workmen's Compensation Act if the deceased does not meet the definition of 'workman', and they should instead file a claim petition under the Motor Vehicles Act.

I.M. Quddusi, J

1. Heard on I.A. No.01 & 02, applications for condonation of delay in filing the appeal.

2. On due consideration of the grounds mentioned in the applications, we are satisfied that the appellants have succeeded in explaining the cause of delay in filing the appeal. Therefore, the applications (I.A. No.1 & 02) are allowed and the delay caused in filing the appeal is hereby condoned.

3. The appeal is admitted on the following substantial question of law:-

"Whether it was open for the claimants to approach the Commissioner under the Workmen's Compensation Act by filing a Claim Petition in a case where the deceased was employed in the Clerical capacity?"

4. This appeal has been filed by the appellants under Section 30 of the Workmen's Compensation Act, 1923 (amended as the Employees' Compensation Act, 1923) against the award dated 25-02-2010 passed by the Commissioner for Workmen's Compensation-cum-Labour Court, Korba (for short 'the Commissioner') in Case No.66/WC Act/2008/Fatal, whereby the claim petition of the appellants/claimants has been dismissed.

5. Brief facts of the case, as per version of the claimants, are that deceased Sanjeev Kumar Dixit was in the employment under respondent No.1 as Clerk. On 27-09-2007; Sanjeev Kumar Dixit had gone to work with respondent No.1 from where the deceased was sent to his house to bring some documents urgently. While the deceased was going to his house, on the way, near Railway Bridge, he met with an accident by Truck bearing registration No.R.J.-20-GA/2546, as a result of which he sustained grievous injuries, in the accident. He was taken to Balco Hospital for treatment where he died during the course of treatment. At the time of accident the deceased was aged about 31 years and was earning Rs.3500/- per month.

6. The claimants being legal heirs of the deceased, had filed an application before the Commissioner, under Section 10 of the Workmen's Compensation Act, 1923 (for short 'the Act, 1923'), claiming compensation to the tune of Rs.3,60,412/- for the death of the deceased.

7. Learned Commissioner on a close scrutiny of the evidence led, material placed on record and submissions made by the parties, has dismissed the petition filed by the claimants.

8. We have heard learned counsel appearing for the parties and perused the impugned award of the Commissioner.

9. The Commissioner framed issue No.1 to the effect that whether the deceased Sanjeev Kumar Dixit was in the employment of respondent No.1, on the date of accident i.e. 27-09-2007 in the capacity of workman and was working. The finding given by the learned Commissioner in this regard was that the deceased would not come under the definition of 'workman'.

10. In Schedule 2 of the Workmen's Compensation Act, 1923, it is mentioned that the workman would be a person employed, otherwise than in a clerical capacity, in any premises wherein or within the precincts whereof a manufacturing process as defined in clause (k) of Section 2 of the Factories Act 1948 (63 of 1948), is being carried on, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, [whether or not employment in any such work is within such premises or precincts] and steam, water or other mechanical power or electrical power is used; or

11. However, w.e.f. 18-01-2010, the Workmen's Compensation Act became as of Employees Compensation Act, 1923 but the same would not be applicable in the case of the deceased, as the deceased was not a workman within the definition of the Workmen's Compensation Act, and therefore, the claim petition before the Commissioner under Workmen's Compensation Act was not maintainable.

12. Section 167 of the Motor Vehicles Act is reproduced as under:-

"167. Option regarding claims for compensation in certain cases.-Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for