005-NLR-NLR-V-38-MANICAM-v.-SULTAN-ABDUL-CADER-BROS.pdf
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Manicam v. Sultan Abdul Coder Bros.
1936
Present: Soertsz A.J.
MANICAM v. SULTAN ABDUL CADER BROS.
S.C. No. 66—Workmen’s Compensation.
Workmen’s Compensation—Person employed to wash lorry and to load goods—Employment in connection with the maintenance of vehicle—OrdinanceNo. 19 of 3934, Schedule II (2).
A workman, who is employed to wash a lorry and to arrange bagswhen they are being loaded in it, is a person employed in connexion withthe operation or maintenance of the vehicle within the meaning ofsection 2 of Schedule II of the Workmen’s Compensation Ordinance,No. 19 of 1934.
HIS was an application under section 34 of the Workmen’sCompensation Ordinance, No. 19 of 1934. The application was made
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by the widow of one Alvan Sivaguru for compensation on account of thedeath of her husband, which resulted from injuries sustained by himwhile employed on a lorry belonging to his employer. The Commissionerfound that he was employed to wash the lorry and to arrange bags of riceand paddy in the lorry, when it was being loaded.
He held that the kind of work performed by the deceased did notbring him within the definition of “ workman ” in the Workmen’sCompensation Ordinance.
5. J. V. Chelvanayagam (with him H. W. Tambiah), for appellant.—Section 1 of Schedule II of Workmen’s Compensation Ordinance isapplicable. Under this section the only kind of employment excludedis employment in a clerical capacity. By excluding one particulartype of employment the legislature intended to include all other types ofemployment.
In construing the word “ operation ” when used in connection with alorry regard must be had to the purpose for which the lorry is intended.In this case the lorry was used for the transport of goods. Thereforeloading and unloading that lorry was work necessary for the “ operation ”of the lorry.
The Workmen’s Compensation Ordinance must be construed as muchas possible in favour of the Workman (Roger v. Cardiff1).
L. A. Rajapakse (with him M. Maharoof), for the respondent.—OurOrdinance, unlike the corresponding English Act, specifically lays downin Schedule II the list of persons who are included in the definition of“workmen” in section 2 (1). Section 1 of Schedule II refers to employ-ment in connection with mechanically propelled vehicles. If thelegislature intended to include within this section persons employed inloading and unloading a mechanically propelled vehicle as workmenwithin the meaning of this Ordinance it would have stated so specificallyas it has done in section 6 of the Schedule which deals with employmentin connection with ships.
Loading and unloading is in no way connected with the operation of alorry. The word “ operation ” refers to the actual mechanical propulsionof the lorry.
Cur. adv. vult.
1 (190-5) 2 K. B. 832, 836.
SOERTSZ A.J.—Manicam v. Sultan Abdul Cader Bros.
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June 1, 1936. Soertsz A.J.—
The question involved in this appeal arises from an application madeby the dependant, in this instance, the widow of one Alvan Sivaguru,to the Commissioner appointed under the Workmen’s CompensationOrdinance, No. 19 of 1934, for compensation on account of the death ofher husband, which resulted from injuries sustaned by him while he wason the lorry belonging to his employer, M. Sultan Abdul Cader, therespondent to this appeal.
The Commissioner found that the deceased worked on this lorry for adaily wage, his usual work being to arrange bags of paddy, rice, &c., inthe lorry, when it was being loaded. The Commissioner appears to haveaccepted the evidence of those witnesses who stated that the deceasedwashed the lorry too. With regard to this, there had been a conflict ofevidence.
But the Commissioner held that the kind of work performed by thedeceased did not bring him within the definition of “ workman ” in theOrdinance, and that therefore the petitioner’s application failed.
“ Workman ” is defined in the Ordinance as meaning “ any person whois employed on wages not exceeding Rs. 300 per mensem in any such
capacity as is for the time being specified in Schedule II”
The capacity relied upon by the petitioner for her claim is the capacitymentioned in paragraph 1 of that Schedule. It is in these terms :“ Any
person who is employed, otherwise than in a clerical capacity, in connexionwith the operation or maintenance of any mechanically propelled vehicle ■(including a tramcar) used for the carriage or conveyance of passengers orgoods for hire, or for industrial or commercial purposes ”.
The Commissioner says in his order that as he reads the paragraph “ theoperation or maintenance must be in connection with the mechanism ofthe vehicle itself ” and he goes on to say “ mere arrangement of the loadclearly has nothing to do with this. It is true that the deceased is alsosaid to have washed the lorry at times, but even this work, thoughnecessary, no doubt, to maintain the lorry for a long life, is not by itself,in my opinion, an employment which falls within the definition containedin paragraph 1 ”.
If the Commissioner’s order means that notwithstanding the conflictof evidence on that point, he was satisfied that the deceased had beenemployed to wash the lorry at times, I am clearly of opinion that thedeceased had been “ employed in connexion with the ….maintenance ” of the lorry.
The words are very wide—employed in connexion with the maintenanceof any mechanically propelled vehicle, &c. Washing the lorry, as theCommissioner himself points out, has a distinct bearing on its maintenance,and when a man is employed in washing it, he is obviously employed inconnexion with its maintenance. Washing a lorry is one of the factorsnecessary for its maintenance. My view is equally clear that, even if theevidence that the deceased washed the lorry at times is disregarded, andthe proved fact is taken to be that his work was arranging the bags whichwere being loaded on the lorry, the claim is none the less properly made
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S. I., Police v. Wijesekere.
that he was “ employed …. in connexion with the operationof a mechanically propelled vehicle used for …. industrial orcommercial purposes ”.
If the legislature, when it used the word “ operation ” in that paragraph,used it to mean “ operation ” in connexion with the mechanism of thevehicle only, it was not necessary to exclude in express terms employmentin a clerical capacity, for employment in such a capacity is excluded bythe word itself. The fact that the only employment excluded is employ-ment in a clerical capacity, clearly indicates that employment in all othercapacities in connexion with the operation of the lorry is included.Moreover, in this case “ the mechanically propelled vehicle ” is one thatfalls within the meaning of the words “ used for industrial or commercialpurposes ”. It is a lorry that the owner, the employer of the deceased,used for transporting bags of rice, paddy, &c. The operation of such avehicle for such a purpose calls for the exercise of numerous activities.Whoever does anything on the lorry relevant to the purpose in view,namely, the transport of goods by it, cannot but be said to be employedin connexion with the operation of the lorry.
Take the case of an omnibus. It is operated in order to carry passengers.It requires besides a driver and a cleaner, a conductor. Can it be saidthat the conductor is not employed in connexion with the operation of theomnibus ? If the interpretation of the Commissioner is right, a conductorof an omnibus does not fall within the definition of workman in theOrdinance. Is there any justification for such an exclusion, when theexpress terms of the' paragraph exclude only those employed in a clericalcapacity ?
I am, therefore, of opinion that the interpretation given to thisparagraph 1 in Schedule II by the Commissioner is erroneous and I holdthat the deceased was a workman within the meaning of that paragraph,and I remit the case to the Commissioner for consideration of the questionof the amount of compensation due. I make no order for costs.
Appeal allowed.