DECISION This appeal under section 30 of the Workmen's Compensation Act, 1923, is directed against the order of the learned Commissioner for Workmen's Compensation, East Division, Karachi, dated 30th March, 1982, awarding a sum of Rs. 15,000 as compensation to the two res--pondents, who are said to be' the dependants of an employee of the appellant company, by name Altaf Hussain Shah who died in conse--quence of an accident while he was driving the truck of the appellant company.
2. The admitted facts of the case are that on 20th November, 1979 Altaf Hussain Shah (deceased), an employee of the appellant company, was driving the company's truck No.830-110. The truck was being taken to Gharo on the company's business. When the truck was nearing the railway gate at Malir a headlong collision took place between the company's truck and another bus which was coming from the opposite direction, in consequence of which the Driver, Altaf Hussain Shah sustained serious injuries. He was rushed to the Jinnah Hospital but expired two days later i.e., on 22nd November, 1979. Information of the collision was communicated to the company immediately and it appears that the company deputed their employee, Saleem Akhtar Gil, to inform the relations of the deceased about his serious condition. On 29th May, 1980, the respondents submitted an application to the learned Commissioner , Workmen's Compensation, for award to them of com--pensation of Rs. 15,000 on account of the death of Altaf Hussain Shah.
3. The appellant corporation resisted the claim of the respondent on verious grounds including the ground that deceased Altaf Hussain Shah was not a workman for the purposes of the Workmen's Compen--sation Act, 1923, that no notice of the accident was given to the appellant company and that the dependents bad filed a Civil Suit in the High Court for award of damages against the owner of the bus which had dashed against the company's truck resulting in the death of Altaf Hussain Shah. None of these objections found with the learned Commissioner who rejected the same and by the impugned order awarded to the respondents the amount of compensation claimed by them.
4. I have heard Mr. Syed Nasiruddin, the learned counsel for the appellant company and Mr. Muhammad Maqsood, who appeared for the two respondents.
5. The first ground on which Mi. Syed Nasiruddin assailed the impugned order of the learned Commissioner was that no notice. As required by section 10 of the Workmen's Compensation Act, was given by the respondents to the appellant company. The notice contemplated by the said section is to be served upon the employer or a person res--ponsible to employer. In the instant case, although it is claimed in the application made by the respondents for award of compensation that statutory notice was served upon the appellant company, no copy of such notice has been filed by the respondents. What has been filed by them is a copy of the notice given by the Advocate of the respondents to one Naseem Ahmed, who is said to be the driver of the bus which dashed against the company's truck resulting in fatal injuries to Altaf Hussain Shah. However, there has been no denial by the appellant company of the averments made in the main application of the respondent about the service of the requisite notice on the appellant company, either in the preliminary objections raised by the company or in the written arguments submitted on their behalf. Furthermore, no evidence, whatsoever, on this point or any other point was led by the company. Thus the asser--tion made by the respondents in their main application stands uncon--troverted as regards the service of the requisite notice upon the appellant company.
Moreover, the admitted position is that the appellant company had notice of the accident and even had deputed one of their employees., Saleem Akhtar Gil, who was examined before the learned Commissioner, y to inform the respondents about the deceased having sustained injuries in the accident. The second proviso to subsection (1) of 'section 10 of the Workmen's Compensation Act dispenses with the requirements of the notice contemplated by the said section when the employer gains know--ledge of the accident from any source at or about the time when the accident occurred. This contention of Mr. Syed Nasiruddin Ahmed, thus, has no force and is repelled.
6. It was next contended by Mr. Syed Nasiruddin that admittedly the respondent had filed a suit in the High Court claiming a sum of Rs. 25,000 as damages on account of the death of Altaf Hussain Shah in the accident in question, and though the suit has been filed against the owners of the bus which dashed against the company's truck the respondents were barred from instituting proceedings against the appellant company for award of compensation. In view of the provisions of subsection (5) of section 3 of the Workmen's Compensation Act. The claim of the res--pondent before the learned Commissioner would have been barred under the subsection if the suit in the High Court had been filed earlier in point of time to the application for compensation. Although, a photostat copy of the suit filed in the High Court was filed before the learned Com--missioner, there is no evidence to indicate that it was filed before the Commissioner for Workmen's Compensation was submitted. In fact both the learned counsel agreed that the suit in the High Court was filed subsequently in about 1981 while the claim before the Com--missioner was made on 29th May, 1980.
7, It was finally submitted by Mr. Syed Nasiruddin that deceased Altaf Hussain Shah was not a workman for the purposes of the Work--men's Compensation Act and hence his dependants were not entitled to compensation under the said Act. In order that an employee should fall within the definition of a workman as given in the Workmen's Com--pensation Act, it must be shown that he was employed on monthly wages not exceeding Rs. 1,000, that his employment was not of casual nature, and that he was employed in any such capacity as is specified in Schedule. It was strongly urged by Mr. Syed Nasiruddin that Altaf Hussain Shah was not employed by the appellant company in any such capacity as is specified in Schedule of the Workmen's Compensation Act. On the other hand, it was sought to be argued by Mr. Mohammad Maqsood, the learned counsel for the respondent, that the deceased was so employed. He relied upon two of the items in the said Schedule in support of his contention, i.e., item (xxxiii) and item (vii-a). Item (xxviii) relates to persons employed as drivers, cleaners, conductors and checkers by Road Transport Service as defined in subsection (7) of section 2 of the Road Transport Workers Ordinance, 1961. It was, however, conceded by Mr. Muhammad Maqsood that the appellant company is not a Road Transport Service since it is not running a Service carrying passengers or goods or both by road in vehicles for hire or award. As regards item (vii-a) of the second Schedule to the Workmen's Compensation Act it is only applicable to persons employed in loading and unloading of goods in mechanically propelled vehicles in the Karachi Division. Deceased Altaf Hussain Shah, however, was a driver and not a loader and there is no evidence to show that he was required to do any unloading or loading of goods in addition to his work of driving the truck. Mr. Muhammad Maqsood, however, sought to argue that were inter--pretation should be given to the words "Loading and unloading of goods" as used in the aforesaid item and it should be deemed to include the drivers of the vehicles in which goods are carried. Mr. Muhammad Maqsood was unable to cite any authority in support of his contention, nor have I been able to locate any Pakistani authority on the subject. I am, therefore, constrained to fall back on the ordinary dictionary meaning of the words "loading and unloading of goods". According to Ballentine's Law Dictionary, loading has been defined as : "the placing of goods on a ship, railred car or truck."
The same dictionary defines "loading and unloading as :- ',the transfer of cargo from wharf or landing to ship and on from `ship to wharf or landing (48 Am JIst Ships 381). A comparable operation in the transportation of goods, merchandise, or another articles by land carrier. (13 Am J 2d Cars 319. The business of wharfinger 56 Am JIstWhars 19)." "a cargo, weight, or stress placed on something." ---the act of putting a load on or in ; as to load a beast of burden, a car or a vessel." "mere handling of freight at a terminal before or after loading, or even the placing of certain articles of freight on a motor carrier truck may form so trival, casual, or occasional a part of an employee's activities, or his activities may relate only to such articles or to such limited handling of them, that these activities will not come within the kind of "loading" which is described by the Interstate Commerce Commission and which in its opinion, affects safety of operation, so as to bring such employees within jurisdiction of the Commission under the Motor Carrier Act in the matter of maximum hours of service."
8. I am therefore, inclined to the view that deceased Altaf Hussain Shah, who was merely the driver of the truck, cannot be deemed to have been employed in loading or unloading of goods in a truck or other mechanically propelled vehicle and hence does not fall within the ambit of item (vii-a) of the Second Schedule to the Workmen's Compensation C Act, 1923, howsoever widely the words "loading and unloading of ~ goods" may be construed or interpreted. Since the deceased does not fall within the Second Schedule to the said Act, his dependents would not] be entitled to award of compensation under the said Act.
9. For the reasons discussed by me above, I would set aside the impugned order of the learned Labour Court and would allow the appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.