Dependents of workman entitled to compensation.

This appeal under the Workmen’s Compensation Act raises for determination an interesting point which does not appear to have been specifically decided in any reported case. The appellant is one Vinayaka Mudaliar who claims to be by vocation a printer. He engaged one Munuswami a cooly, as a mason along with another Munuswami P.W. 2 to construct a house without engaging the services of any contractor. The former Munuswami died on 18th December, 1948, as a result of being engulfed in earth. His widowed mother filed an application, it would appear on nth April, 1950, for compensation, under the Workmen’s Compensation Act. The Commissioner awarded her Rs. 2,400 under Schedule IV negativing the contention of the employer that the deceased was not at the time of the accident a workman within the meaning of section 2(1)(n) of the Act.

2. According to P.W. 2 he and the deceased Munuswami were each paid Rs. 3 a day by the appellant who used to build houses and let them on rent. They had constructed or were constructing three houses for him. This has not been specifically denied in the witness box by Vinayaka Mudaliar, who took the position that the deceased Munuswami was employed by the maistry who was supervising the work and was paid by him.

3. The definition of a workman under section 2(1)(n) excludes a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer’s trade or business. The simple point for determination in this appeal is this: Did Vinayaka Mudaliar employ this deceased mason for the purpose of his trade or business? Mr. K.R. Krishnaswami for the appellant has relied on some decisions under section 12 of the Compensation Act which casts upon the principal who contracts with another person for the execution of the whole or any part of any work which is ordinarily part of the trade or business of the principal, liability under the Act if a workman engaged by the contractor sustains injury. In Karnani Industrial Bank, Ltd. v. Ranjan1, it was held that house building was not ordinarily part of the trade or business of a bank and a bank which had contracted with different people to do different parts of house building work was held to be not liable as a principal under section 12. There was reference in that decision to Skates v. Jones and Co.2, in which two shop-keepers who also kept a billiard room joined in running a skating rink and entered into a contract with a person to remove and re-erect the iron structure which they purchased. It was held that the two shop-keepers were not liable as principals as the work in which the workman was injured was not part of their trade or business. Another decision to the same effect is Rabia v. Agent, G.I.P. Railway3, in which the G.I.P. Railway entered into a contract with a company to construct a transmission line to carry electric power to various sub-stations on the railway. The deceased workman was employed by the contractors and died in the course of such employment. It was held that the railway were not liable as the setting up of overhead electric cables for the purpose of transmitting electric power to the railway was not ordinarily part of the trade or business of the principal, i.e., the railway under section 12.

4. This is not a case coming within the scope of section 12, there being no principal and no one under any contractual relationship with the principal who actually employed the workman. The point arising for determination must be answered with reference to the definition of workman in section 2(1)(n) of the Act. In the present case the deceased workman’s employment was admittedly not of a casual nature. The point is whether he was employed for the purpose of Vinayaka Mudaliar’s “trade or business.” The evidence shows that Vinayaka Mudaliar had built three houses by directly employing masons without resort to a contractor. If he had engaged a contractor he would quite clearly not be liable as a principal und