Nathoo v. Diwan Sugar Mills Ltd. — 1955 DIGILAW 247 (ALL)

JUDGMENT Hari Shankar, J. - This appeal by Nathoo contractor has been filed u/s 30 of Workmen's Compensation Act. 2. The facts of the case lie within a narrow compass. In the factory area of Diwan Sugar Mills Sakoti district Meerut, certain repairs were required to be made in the chimney of the Mill. For doing this work, the mill authorities contracted with Nathoo who was to carry out the repairs on contract basis. Nathoo employed his PWP men to do this Work, and one of them was Kishan Lal, husband of Smt. Parbhati. While he was doing the work of (sic) steel chimney plates, he lost his balance and fell down, from a height of 80 feet. His death was instanteneous. 3. Smt. Parbhati filed a claim for compensation against Diwan Sugar Mills who denied their liability. It was further pleaded on behalf of the Sugar Mills that under the terms of the agreement with Nathoo, he was liable for the compensation and not the mill. 4. Nathoo contractor took the position that he was merely an agent of the mill, and that the liability for the accident did not fall on him but on the mill. 5. The Compensation Commissioner came to the conclusion that the Diwan Sugar Mills were primarily liable u/s 12 Clause (1) of the Workmen's Compensation Act. It was further held that under Clause (2) of Section 12 the Diwan Sugar Mills could recover the compensation from the contractor, that is the Appellant. 6. The Commissioner fixed the amount of compensation at Rs. 3,500/- and directed the Diwan Sugar Mills to pay it to the widow of the deceased workman. It was further ordered that the Diwan Sugar Mills shall be entitled to be reimbursed to the extent of Rs. 3,500/- by the contractor Nathoo. It is against this part of the order that Nathoo has come up in appeal. 7. Learned Counsel for the Appellant has argued that the contractor's liability under Clause (2) of Section 12 of the Workmen's Compensation Act will arise only if under Clause (1) of the section the deceased workman was engaged to do a work 'which is ordinarily part of the trade or business of the principal'. 7. Learned Counsel for the Appellant has argued that the contractor's liability under Clause (2) of Section 12 of the Workmen's Compensation Act will arise only if under Clause (1) of the section the deceased workman was engaged to do a work 'which is ordinarily part of the trade or business of the principal'. In other words the argument is that the business of the mill being to manufacture sugar, the workman, when the accident occured, was engaged in repairing the chimney of the mill which cannot be construed as a part of the business of the sugar mill. This argument though ingenious has little substance. Section 12 of the Workmen's Compensation Act runs thus: 12.(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or to under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him: and where compensation is claimed from the principal, this act shall apply as if reference to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed. (2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation, and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner. (3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal. (4) This section shall not apply in any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken or usually undertakes as the case may be, to execute the work or which are otherwise under his control or management. 8. Section 12 of the Act has been enacted to meet those cases where an owner of a mill does his work through a contractor. In order to attract the provisions of Section 12 it is necessary to establish (1) that the employer in the cause of or for the purposes of his trade or business engaged a contractor for doing his work, (2) that the work entrusted to the contractor is 'ordinarily part of the trade or business of the principal,' and (3) that the accident occurred in or about the premises where the normal business of the employer is carried out. 9. It is not disputed that the Appellant agreed to do the work of repairing the chimney under contract with the principal, and that the deceased was in the employment of the contractor when he accidentally fell down while repairing the chimney of the mill. If the contractor had not been engaged, the work of repairing the chimney would have been carried out directly by the principal in the ordinary course of his business. 10. The argument advanced on behalf of the Appellant is that the work of repairing the chimney does not form part of the trade or business of the principal and therefore Section 12 of the Act is not attracted. It is true that the main business of the principal is to manufacture sugar nevertheless the production of sugar depends upon the smooth working of the mill as a whole. It is the duty of the principal to preserve the building and the machinery in serviceable condition to ensure the production of sugar. The chimney is an essential part of the plant of the mill and to keep the chimney in proper condition is as much a part of the cordinary business of the principal as the production of sugar itself. The chimney is an essential part of the plant of the mill and to keep the chimney in proper condition is as much a part of the cordinary business of the principal as the production of sugar itself. The main purpose of the mill is no doubt to manufacture sugar but this can be achieved only if the entire plant of mill is kept in working order. It would, therefore, be unreasonable to hold that the repair of the chimney which is a part of the plant contributing to the production of sugar is not an ordinary part of the business of the principal. 11. Learned Counsel for the Appellant relied upon the case of Rabia Mohammad Tahir v. G.I.P. Railway AIR 1929 Bom 179. In that case the G.I.P. Railway gave a contract to Messrs. Henleys for constructing a transmission line to carry electric power to various sub-stations of the railway. The contractors were erecting steel towers and one of their employees while carrying material was knocked down by a train and killed. These towers were being constructed not on the railway track but about 400 to 700 feet away from the line. The question in that case was whether the carrying out the work of erecting steel towers by the contractor could be included in the expression 'ordinarily part of the trade or business' of the railway company. On the facts made out in that case it was held that the construction of the original works which would be necessary to convey that power to the locomotives was not a part of the trade or business of the G.I.P. Railway within Section 12. Murphy J. drew the distinction thus: The contractors were carrying out the work as a part of their ordinary trade or business. The position of the railway administration is that, when the work is ultimately completed, it will take it over. They are in really much the same position as against the contractors, as they would be against other contractors who might supply them with railway sleepers or similar material. In other words, the stage at which they can use these towers has not yet been reached, and until it has been the railway administration cannot be said to have been connected with this work as part of their trace or business. 12. In other words, the stage at which they can use these towers has not yet been reached, and until it has been the railway administration cannot be said to have been connected with this work as part of their trace or business. 12. In the aforesaid Bombay case, the electric installation had not become a part of the ordinary trade and business of the railway administration when the accident occurred. At the time the workman, who met with the accident, was doing the work of contractors who were carrying out the work as the part of their trade and business. While in the case before me the deceased workman was repairing the chimney of the mill which is an essential part of the equipment required to produce sugar. The decision in the above ruling does not help the Appellant as the facts of that case bear little resumblance to the facts of the present case. 13. In Periyakkal Vs. The Agent, South Indian Railway Co., Limited, AIR 1935 Mad 721 facts were more or less similar to the case before me. A workmen under the employment of a contractor sustained fatal injuries. The railway had employed a contractor to do repair work to a railway bridge. The work which was being done by the contractor was not in the nature of the original work but of the maintenance and upkeep of the railway line. Curgenven, J. made the following observation: Companies in this country maintain a permanent staff of engineers, whose most indispensable duty it is to preserve the line and the rolling stock in serviceable condition, and who carry out, where necessary with the help of contractors, all operations necessary to that end.... It is work which has to be done if the primary functions of the railway are to be performed, and it is work which constantly needs doing. Indeed, the business of keeping the line in order appears as normal and as essential a feature of the running of a railway as the issue of tickets or the handling of good. 14. In the present case under enquiry "the business of keeping" the chimney of the mill in order was 'as normal and as essential a feature' of the running of the mill as the production of sugar. 14. In the present case under enquiry "the business of keeping" the chimney of the mill in order was 'as normal and as essential a feature' of the running of the mill as the production of sugar. It is therefore clear that the deceased while engaged in the repair work of the chimney was doing a work which was the ordinary part of the business of the mill owners. There is, therefore, no substance in the contention that Section 12(1) of the workmen's Compensation Act does not apply. The case is fully covered by it and the learned Compensation Commissioner was quite justified in holding that u/s 12(1) the Diwan Sugar Mills were primarily responsible to pay the compensation. Indeed the Diwan Sugar Mills have not disputed this finding. 15. The deceased was in the employment of the contractor when the unfortunate accident occurred. Clause (2) of Section 12 has been enacted to in demnify the principal for compensation paid under Clause (1). The Compensation Commissioner has made an order that the Diwan Sugar Mills shall be entitled to be reimbursed for the compensation paid to the widow of the deceased workman by realising the amount of compensation from the contractor. Apart from the statutory liability, the contractor that is the Appellant, had agreed, before asking up the work, to bear all responsibility for any accident occurring during the performance of the work. The order of the Compensation Commissioner holding that the Diwan Sugar Mills should be indemnified by the contractor is a correct and proper order. 16. The appeal is, therefore, dismissed with costs. 17. Leave to appeal is refused. Roy, J. 18. Judgment pronounced today under Chapter VII Rule 1(3) of the Rules of Court.