' This appeal has been brought under section 30 of the Workmen's Compensation Act, 1923 against the order dated 26-4-1979 passed by the learned Commissioner for Workmen's Compensation, Gujranwala, whereby Rs,15,000 were awarded as compensation for the loss of the life of Mohammad Fazil, deceased, who met with an accident while on duty on 13-8-1976, which resulted in his death.
2. The deceased, according to her widow Mst. Shamim Akhtar, was employed on daily wages at the rate of Rs,10 per day in the appellant factory and he met with an accident on 13-8-1976 while working on a drill machine, which resulted in his death. The accident is not denied but the contest between the appellant and respondent No,2 is with regard to the fact whether the deceased was the employee of the appellant or respondent No,2. The learned Commissioner has decided that the appellant is responsible for the payment of compensation as the deceased was its employee. The appellant admits that the deceased was its employee but its case is that twenty days before the accident he became the employee of respondent No,2. The learned Commissioner did not believe the three witnesses examined for the appellant for the reason that they were its employees and thus were interested witnesses. Respondent No,2 had produced attendance register Exh. R.2/6 which did not contain the name of the deceased among the workers of respondent No,2.
Respondent No,2 in reality is the contractor of the appellant. No letter of initial appointment was brought on the record and this was the reason that the appellant as well as respondent No,2 started denying their liabilities on the plea that the deceased was not their employee. As mentioned above, the sole dispute is based on a question of fact whether the deceased was the employee of the appellant or respondent No,2 at the time of accident. According to section 30 of the Workmen's Compensation Act, the appeal lies only when a substantial question of law is involved. Since the learned Commissioner relied upon the evidence produced by respondent No,2 and did not believe the one produced by the appellant, the finding by the learned Commissioner is purely of fact and no legal point is involved. The learned counsel has said that since respondent No,1 did not produce any evidence to the effect that the deceased was the employee of the appellant, the appellant is not liable. In the beginning only the appellant was impleaded as party by respondent No,1 and when the appellant took up the plea that respondent No,2 was the contractor pf the appellant and he was liable to pay the compensation, respondent No,2 was impleaded as party. If respondent No,1 has not produced any elaborate evidence; it does not mean that the material which is on the record is to be ignored. The appellant did not produce the attendance or pay register to show that the deceased was not its employee, whereas respondent No,2 has produced the ' attendance register which did not contain the name of the deceased, showing that the deceased was not his employee. It has been argued by the learned counsel for the appellant that the learned Commissioner has misunderstood section 12 of the Workmen's Compensation Act and thus has wrongly applied it, but it has not been shown as to what is the mistake. According to subsection (1) of section 12, if the principal contracts with another person in the course of or for the purpose of trade or business, the principal is liable to pay to a workman employee in the execution of work compensation which he would have been liable to pay if that workman had been immediately employed by him. The case of the parties here is not that the deceased had been employed by the contractor respondent No,2, but rather the case of the appellant is that the deceased had been employed by respondent No,2, whereas conversely the case of respondent No,2 is that the deceased was the employee of the appellant. However, even if it be taken that the deceased had been employed by respondent No,2, who was working for the appellant under a contract, according to section 12, the liability to pay compensation is always upon the principal and not the contractor. Admittedly, the principal was the appellant. So whatever view is taken the appellant is liable to pay compensation. It has been observed in PLD 1960 Kar. 395 that in order that the employment be not casual, there should be some stability in the agreement of service. If a person is employed just once and not for a long period, the employment cannot but be casual. Where an employer simply asks a labourer to work for a day without any further commitment, it is clearly only a casual employment. The authority is not helpful to the appellant, because it was not provided by him that the employment of the deceased was of casual nature.
Rather he went to the extent of denying the deceased to have been employed by him. The evidence present on the record does not show that the deceased had been employed for a short time. The same may be said with regard to PLD 1961 Dacca 550. The learned counsel has cited 1976 PLC 55 also, but this is on the point that appeal lies only when there is a substantial question of law. It has been observed C that failure to consider material evidence is a substantial question of law. But the learned counsel has not been able to show that any material evidence may have been ignored by the learned Commissioner. However, he says that there is no evidence on the question of employment of the deceased by the appellant. The record of employment can be with the appellant and with nobody else, therefore, only oral evidence could be led on the point by respondents Nos,1 and 2 and respondent No,? Did produce evidence to show that the deceased was the employee of the appellant and not his employee. So the learned Commissioner rightly held the appellant liable to pay the amount of compensation to the heirs of the deceased. There is no force in the appeal, which is dismissed.