Alice Nona V. Wimalatunga

1950 Present . Nagalingam J.

ALICE NONA, Appellant, and WIMALATUNGA, Respondent

S. C. 931-Workmen's Compensation No. C3/101/49

Workmen's Compensation Ordinance (Cap. 117)-Right of workman to recover compensation from principal of contractor under whom he is employed-Section. 22, sub-sections (1) and (4)..

A was a building contractor who had taken a contract under Government to repair the Okampitiya Road. B was given a sub-contract by A to perform-part of the contract. B employed workmen to transport gravel in lorries and heap it on various sections of the road. While some of these workmen, of whom C was one, were travelling in a. lorry loaded with gravel an accident occurred and C died. The destination, however, of the lorry, at the time of the accident, was not any section of the Okampitiya Road but Buttala where A required the gravel for some rooms he was putting up for himself.

In an application for compensation made against A by the mother of C-

Held, that the accident which resulted in the death of the deceased occurred " on, in or about the premises on which the principal has undertaken to execute the work or which are otherwise under his control or management " within the meaning of sub-section 4 of section 23 of the Workmen's Compensation Ordinance.

APPEAL from an order of the Deputy Commissioner for Workmen's Compensation.

K. C. de Silva, for the applicant appellant.

No appearance for respondent.

Cur adv. vult.

December 26, 1950. NAGALINGAM J.

The appellant appeals from an order of the learned Deputy Commissioner for Workmen's Compensation dismissing her application for compensation in respect of the death of her son who she alleged had been employed under the respondent.

The learned Commissioner has found, and his finding has not been challenged, that the deceased was not in fact a workman employed by the respondent. But it is contended that compensation should have been awarded on the basis of the alternative finding of the learned Commissioner that the deceased had been employed by a contractor in the employ of the respondent. The learned Commissioner has held that it has not been established that the accident which resulted in the death of the deceased " occurred on, in or about the premises on which the principal has undertaken or usually undertakes to execute the work or which are otherwise under his control or management " within the meaning of sub-section 4 of section 22 of the Workmen's Compensation ordinance.

The respondent in giving evidence described himself as a timber contractor and a building contractor and also stated that he was a registered Government contractor and that at the date of the accident he had taken a contract under Government to repair the Okampitiya Road. The deceased workman, according to him, was employed under a contractor of his named Albert Gunewardene who had been given a subcontract to perform part of the contract which he had undertaken in regard to the repairs to the Okampitiya Road. The workmen, of whom the deceased was one, were engaged in widening the road at its bends, loading the lorries with gravel or earth so obtained and heaping it on other sections of the road in order that the gravel or earth may be spread on the surface of those sections. The transport of the gravel was by means of a mechanical tipper, that is to say, a lorry embodying a tipping meehanism.

The evidence discloses that the labourers had to do eight trips a day, four before the interval for the noon-day meal and four thereafter. It is in evidence that it was during the course of the fourth trip of the lorry when the workmen including the deceased were travelling in it which was then loaded with gravel that the accident occurred and that the destination of the lorry on that occasion was not any section of the Okampitiya Road but Buttala where the respondent required the gravel or earth for some rooms he was putti

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