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BEFORE HON'BLE THE CHIEF JUSTICE MR. T. VAIPHEI Counsel for the appellants : Mr. P.S. Roy, Advocate.

Counsel for the respondents : Mr. S.D. Choudhury, Advocate.

       Date of hearing                     : 12-01-2018.

        Date of Judgment & Order           : 31-01-2018



                                JUDGMENT & ORDER

This appeal under Section 30 of the Employee's Compensation Act, 1923 is directed against the judgment dated 1-4-2015 passed by the learned Commissioner, Employee's Compensation, West Tripura in T.S.(EC) No. 24 of 2011 refusing to award any compensation to the appellants.

9. As already noticed, OPW No. 1 has admitted in his cross- examination that the deceased was engaged by him as his driver. There is, however, no evidence to show the nature of his employment, namely, whether he was merely engaged as a casual driver and not as regular driver. In other words, whether the deceased can be said to be "a person recruited as driver' within the meaning of Section 2(1)(dd)(ii)(c) of the Act. At this stage, it may be observed that the term "workman" occurring in Section 2(1)(n) of the Workmen's Compensation Act, 1923 has undergone substantial change by substituting it by the term "employee" under the Employee's Compensation Act, 1923, which came into force on 18-1-2010. It may be noted that Section 2(1)(n) of the erstwhile Workmen's Compensation Act, 1923 defined the term "workman" as under:

(Underlined for emphasis)

10. The afore-mentioned provisions may be compared with Section 2(1)(dd) of the Employee's Compensation Act, which substituted the term "workman" for the term "employee" and the latter is now defined as:

(dd) "employee" means a person, who is--

(i) a railway servant as defined in clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II; or

11. From the provisions extracted above, it is quite obvious that the Parliament has not only amended the name of the Act from "Workmen's Compensation Act, 1923" to "Employee's Compensation Act, 1923" but also substituted the term "workman" for the term "employee" by giving new definition as noticed already. In my opinion, the net effect of this amendment is that the term driver coming within the purview of "employee" under Section 2(1)(dd)(ii)(c) is not qualified by any words such as "other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business or who is employed in any such capacity as is specified in Schedule II", which are found in the unamended Act. The question to be determined is whether, in the absence of any evidence to show that the deceased in the instant case was a regular employee of the respondent No. 1, he could be said to be a "driver" within the meaning of Section 2(1)(dd(ii)(c) of the amended Act? Or, is it necessary that to come within the meaning of the term "employee" under Section 2(1)(dd)(ii)(c) of the amended Act for availing of the benefit of compensation so payable, the employment of the driver should not be of a casual nature and who should be employed for the purpose of the employer's trade or business or who is employed in any such capacity as is specified in Schedule II?