085-NLR-NLR-V-46-S.-K.-J.-PERERA-Appellant-and-W.-W.-NONAIHAMY-Respondent.pdf
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S. K. J. Perera and W. W. Nonaihamy.
19MPresent: Wijeyewardene J.
S. K. J. PERERA, Appellant, and W. W. NONAIHAMY, Respondents
302—•Workmen's Compensation C 3/58.
Workmen's Compensation—Person employed to load and unload goods in &jlorry—Employment in connection with the operation and maintenanceof a vehicle—Ordinance No. 19 of 1934, Schedule II., s. 1.
A workman, who is employed in loading or unloading goods from a lorry,is one who is employed, in '* the operation or maintenance of a mechani-cally propelled vehicle for the carriage of goods ” within the meaning*,of section 1 of schedule 2 of the Workmen’s Compensation Ordinance.
Aianicam v. Sultan Abdul Cadet Bros. (38 N.L.H. 28) followed.
WUEYEWABDBNE J.—S. K. J. Perera and W. W. Nonaihamg.367
A
PPEAL from an order made by a Commissioner under the Work-men's Compensation Ordinance.
H. V. Perera, K.C. (with him N. M- de Silva and O. T. Samaraiyick-reme), for the defendant, appellant.
S. W. Jayasuriya for the applicant, respondent.
Cur. adv. vult.
May 21, 1945. Wijeyewardene J.—
This is an appeal against an order made by the Commissioner under theWorkmen’s Compensation Ordinance awarding compensation to theapplicant, respondent, as the dependent of one Nomis who died in conse-quence of injuries sustained by him while travelling in motor lorryNo. Z 4225.
It was argued in appeal (i) that the appellant was not the employer ofNomis, and (ii) that Nomis was not a workman within the meaning of theOrdinance. '
I hold against the appellant on the first point, as there is evidence in thecase to support the finding of the Commissioner.
As regards the second point, the evidence of the applicant and someof her witnesses was that Nomis worked in the motor lorry loading andunloading goods and thatkhe was employed also as a cleaner of the lorry.Heading the judgment as a whole I have no doubt that the Commissioneraccepted that evidence, but towards the end of his order he said, “ At.the time of his (Nomis’} death he was engaged in work connected with theunloading of goods from the lorry Z 4225 and in view of this the deceasedwas a. workman Basing his argument on this' paragraph in theorder, the Counsel for the appellant contended that the Commissionerhas accepted only the evidence that Nomis was employed in the loadingand unloading of goods and that on that finding Nomis could not beregarded as -a workman. His argument was briefly as follows:—TheOrdinance mentions clearly in Schedule II the only persons who couldbe regarded as workmen. The section of that Schedule applicable to thepresent case is section 1 which refers to persons “ employed, otherwisethan in a clerical capacity, in connexion with the operation, or maintenanceof any mechanically propelled vehicle (including a tramcar) used for the•carriage or conveyance of passengers or goods for hire, or for industrialor commercial purposes ”. A man employed in loading and unloadinggoods cannot be regarded as a person employed in connection with the“ operation ” of the lorry, as that word refers to the actual mechanicalpropulsion of the lorry.
I am unable to entertain that argument. If the word “ operation ”
in that sactiMfedhas the limited meaning sought to be given to it, there
was no noBfacity for the express provision in that section excluding
those emplojlSd in a “ clerical capacity ”. I think the word “ operation
is- used in a much wider sense and includes such activities as the loading
/
«-9—-J. 9. A. W41S (8/SQ)
¥58 WUEYEWABDENE J.—Nanayakkara *. Government Agent, W. P.
and unloading of goods in the case >of lorries “ used for the carriage of. goods for hire, or for industrial or commercial purposesI am in respectful agreement with the view taken by Soertsz, J. inManicam v. Sultan. Abdul Oader Brothers
I dismiss the appeal with costs.
Appeal dieiniseed.