1. ' This is an appeal under section 30 of the Workmen's Compensation Act, 1923 against the order dated 28-4-1994 passed by the learned Commissioner for Workmen's Compensation under the provisions of Workmen's Compensation Act, hereinafter referred to as the Act. The relief that has been sought is to set aside the impugned decision and consequently to disallow the claim of the respondent on account of the death of her husband Muhammad Ashraf which occurred during the employment of the appellant.
2. ' The factual background of the case is that according to the stand of the petitioner-respondent Muhammad Ashraf her husband was employed as labour by the Forest Development Corporation who died because of collapse of the place where he was staying for the night. It was, therefore, claimed that the death of the deceased happened during his employment as labourer, therefore, she being her widow was entitled to the compensation under the provisions of the Act. She moved an application before the Commissioner for the grant of compensation and the Commissioner addressed the Divisional Forest Officer as to whether they admit the liability to pay the compensation. In reply the appellant did not admit the liability. Accordingly the petitioner was directed by the Commissioner for Workmen's Compensation to move regular application for the grant of compensation and she submitted such an application. It is to be noted that no written statement was filed from the side of the appellant. The evidence which was examined at the trial consists of the statement of Muhammad Roshan father-in-law of the petitioner who supported her claim and attributed the death of his son to have occurred during the course of his employment.
3. The respondent examined Amanullah, Forest Manager who controverted the claim of the petitioner and his main contention was that the deceased was not a workman with the department but he was a petty contractor and used to obtain petty contracts from the Forest Department but in no case he was a regular employee of the department. The petitioner had filed an application for allowing her to examine additional evidence which was accepted and accordingly APW-2 Saadat Khan, D.F.O., Kaghan was examined by her. The statement of this witness is of great assistance in determining whether the deceased was a petty contractor or was employed as labourer by the department.
4. ' On the basis of the evidence on record the Commissioner concluded that the deceased had met death during the course of his employment and was, therefore, entitled to compensation of Rs, 1,00,000.
5. ' The learned counsel pleading for the appellant argued that the deceased was not employed as a workman by the appellant but was as an employee of the Forest Department. It was in this context also submitted that the petitioner failed to produce any letter of appointment issued by the corporation. It was clarified that even if the deceased is held to be the employee of the appellant even then he was not entitled to claim any compensation as the deceased had not met death as a result of an accident arising out of and in the course of his employment. It was also argued that at the most the deceased was a daily labourer and could not be classified as a workman under the Act. It was in the alternative argued that the deceased had committed culpable negligence in sleeping in a place which was so dangerous. In the end the grant of Rs,1,00,000 as compensation was objected to as the amendment in law by which the amount was enhanced from Rs,30,000 to Rs,1;00,000 had come into force after the incident in the present case. He cited certain precedent cases in support of his contention. The learned counsel for the respondent on the other hand controverted the correctness of the submissions made from. The appellant side and he also referred to various cases in support of his view-point.
6. ' I considered the contentions of both the sides in the light of relevant law and the ruling cited at the Bar.
7. ' It is to be noted that in her application dated 13-1-1991 the petitioner had averred that her husband was working in the Forest Development Corporation and this application bears the endorsement of Assistant Forest Manager to the effect "Forwarded and recommended for necessary action under the rules". The project in which the deceased was working is under the Corporation. In a letter available on page 22 of the case file with No, 1811 dated 11-2-1991 it was stated that the deceased was not regular F.D.C. Employee but was working on piecemeal rates as petty contractor. The statement of APW-2 Saadat Khan, D.F.O. Is also clear on this point. It is in his statement that the deceased was a workman in his department. As against this there is no evidence whatsoever to prove that the deceased was a contractor with the appellant. Moreover, this controversy is clinched by the admission of the learned counsel for the respondent at the Bar before the Commissioner wherein in his judgment he has observed "In reply to the argument learned counsel for the respondent conceded at the bar that there is no doubt in it that the deceased was a workman". But he contended that the deceased was to be governed by the rules under the N.- W.F.P. Forest Development Corporation Ordinance, 1980 and the Commissioner for Workmen's Compensation would have no jurisdiction in the matter. In view of the overwhelming evidence on record and also on account of the conflicting stance of the appellant and the above concession from their side it is quite clear that the deceased was an employee of the appellant. Moreover, the duties which the deceased discharged are covered by Schedule 2, Item No, (xxiii) under the Workmen's Compensation Act. It is now to be seen as to whether the death of the deceased had occurred during the course of his employment or otherwise. It can hardly be denied that the deceased had to stay in the jungle for night in order to be near to his place of employment and to be easily available for his job. In view of the evidence on record and the site plan prepared for this purpose it is established that the deceased had died in the proximity of the area in which he was employed. It is thus obvious that the incident had happened under the circumstances which were entirely linked with his duties. It has been laid down in 1969 PLC (Lahore) 711 that: "The word "employment" is not to be read as synonymous with duty or work. In other words, the duty or work which the workman is performing at the time of the accident, if fall within the employment and even if it is not directly connected with the object of the accident which though falls within the place, scope and connotation of employment; then the accident would be said to have arisen out of and in the course of employment. It will however depend upon the circumstances whether or not the matter is covered by section 3 of the Act. Ultimately each case is to be decided on its own facts, meaning thereby that the expression used in section 3, viz. Arising out of and in the course of employment, should be interpreted in the light of the facts of each case". It was further observed in the said judgment that: "Held, that even though at the particular moment the worker was not performing any duty in respect of that poisonous chemical, yet the accident occurred during employment because if the worker would not have been in the employment such hazard he would not have encountered. The High Court took note of the fact that this eating might also be impelled by curiosity, impulse of the moment, or just forgetfulness. When illitrate workers are not made to understand the gravity of certain acts, to accept from them the conduct of highly careful, intelligent and enlightened persons is not justified. Thus, when the deceased workman took it as sugar, it was his normal human conduct of a person placed in his position. This position undoubtedly, at that time, was of a worker performing a duty in the employment of the appellant.
8. The fact that at the particular moment he was not performing any duty in respect of the chemical, will not make any difference; so long as it can be safely held that the chemical near the place of his duty and susceptible to being taken, touched or eaten by him. It is also an admitted fact that such a hazard he would not have encountered, if he would not have been in the employment of the appellant. Human beings, is part of mankind, do not normally come across such situations. This situation was peculiar to the employment of the deceased. Therefore, the accident in this case arose out of and in the course of the workmen's employment with the appellant, and thus the latter was liable to pay the compensation". Similar view was also taken in AIR 1933 Rangoon 208 that "The deceased was a cooly. He had been working at unloading coal from a ship lying at anchor. At the end of his work he got into a sampan to go ashore with other coolies. When in the sampan owing to the falling on the occupants of some .Hot cinders thrown overboard and leaning on one side to Avoid then the sampan capsized and all were thrown into the river. The deceased was drowned.
9. Held, that as the deceased was on his way back to his wharf where his day's employment would end, in a recognised way for the collies to travel without any added risk; the accident must be regarded as one arising out of as well as being in the course of his employment". It has also been laid down in the said judgment that "A workman who is employed even for two days for the purposes of employer's trade or business is a workman under the Act". The above view was also held in a judgment reported in AIR 1942 p. 175 wherein the following rule has been laid down: "The deceased workman was employed as a khalasi on barge which was tied up alongside a steamer. The Khalasis employed on the barge had to prepare and take their meals on the barge and also sleep on the hatches when there was work at night. The deceased was seen going to bed at about 9 p.m. But when his companions get up early in the morning he was found to be missing.
10. Two days after, his body was seen floating in the docks: ' Held, that the workman who was good swimmer was sleeping on the barge in the course of his employment and there was necessarily a risk inherent in the discharge of his duty in so sleeping that he may fall off the barge into the water. The most natural inference to draw was that the accident occurred because for some reason or other in the middle of the night the workman fell of the barge either in his sleep or when half awake and struck his head in the process. The most natural inference from the evidence, therefore, was that he met with an accident which arose out of his duty in sleeping on the barge."
11. ' AIR 1954 Madras 113, AIR 1933 Rangoon 244, PLD 1975 Lah. 269, PLD 1961 Dacca 550, PLD 1964 Kar. 406 also support the view taken by the Commissioner in this case. It is, therefore, held that the deceased was an employee of the appellant at the time of his death and that his death had occurred during the course of his employment. The finding on these points of the learned Commissioner is, therefore, confirmed. However, the amount of compensation has wrongly been fixed at Rs,1,00,000. The Labour Laws Amendment Ordinance, 1993 whereby the amount of compensation was raised from Rs,30,000 to Rs,1,00,000 was enforced on 25th September, 1993 which is dated after the deceased died in this case. No retrospective effect has been given to this amendment, therefore, the petitioner would not be entitled to .The enhanced amount but would get Rs,30,000 which was compensation at the time when the deceased of this case had died.
12. Consequently, the amount of compensation is reduced from Rs,1,00,000 to Rs,30,000. However, the imposition of Rs,5,000 as cost awarded to the respondent side was also in the circumstances not legal, therefore, this five thousand rupees would not be deducted from the compensation of Rs,30,000 and the petitioner-respondent is to be paid Rs,30,000 on account of compensation. This appeal is, therefore, partially allowed. There would be no order as to costs. C.M. Also stands disposed of.