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2001 DIGILAW 193 (KAR)

ASHOK B. SUREBAN v. NEELAVVA

2001-02-27

CHIDANANDA ULLAL

body2001
ULLAL, J. ( 1 ) THIS is a contractor's appeal directed against the order dated 29. 3. 1997 in case No. Dwci:f-158:93 passed by the workmen's compensation commissioner, dharwad district, hubli, insofar as the same related to recording of the finding that the respondent No. 6, hubli dharwad municipal corporation is entitled to be indemnified of the award (rs. 78,824) in question as contemplated under Section 12 (2) of the workmen's compensation act. ( 2 ) THE appellant contractor is represented by Mr. S. V. Shastri. The respondent nos. 1 to 5, the l. rs. Of the deceased were represented by Mr. U. r. malimath, whereas, the contesting respondent No. 6 the hubli dharwad corporation is represented by kesvy and company. Before proceeding further, i feel it appropriate to set out the facts of the case in brief. They are as hereunder: the l. rs. Of the deceased, one yellappa soluri yeleval, the respondent nos. 1 to 5 herein, filed claim petition under the workmen's compensation Act, henceforth in brief 'the act', before the commissioner for workmen's compensation and labour officer at hubli, henceforth in brief referred to as 'the wcc', claiming a compensation of Rs. 1,00,000 from the respondent No. 6 hubli dharwad corporation and the appellant contractor herein. In the prayer part of the said claim petition, the respondent nos. 1 to 5 had prayed that the wcc be pleased to direct the respondent No. 6 and appellant herein (they being the respondent nos. 1 and 2 before the wcc) to pay compensation together with interest. That both the contestants, i. e. , the respondent No. 6 as well as the appellant contractor had filed their detailed objections statement independently. In doing that, when the respondent No. 6 while trying to avoid the liability, prayed the wcc to fix the liability on the appellant contractor whereas, on the other hand, the appellant contractor while denying the claim has contended that the work in question was undertaken by him subject to control and supervision of the respondent No. 6 and that in the event, the wcc were to come to the conclusion that the deceased died while working with the respondent No. 6, and as such the principal employer be held responsible for payment of the compensation. ( 3 ) IN the light of the pleadings of the contending parties before the wcc, the wcc formulated six points for his consideration and one among the said points formulated by him, the point No. 4 was as to whether the l. rs. Of the deceased, the respondent nos. 1 to 5 were entitled for the compensation claimed and if so what was the compensation amount and from whom they were entitled to recover the same. Before the wcc, when the respondent no. ,1, the wife of the deceased had adduced her side of the evidence in support of the claim made, the appellant contractor on the other side had adduced his side of the contra evidence. On the other hand, the respondent No. 6 hubli dharwad corporation did not adduce its side of the evidence and furthermore, it did not challenge the evidence adduced by respondent nos. 1 to 5 inasmuch as it had not cross-examined the respondent No. 1 examined as pw 1 before the wcc. It is to be added here that it is the appellant contractor who had challenged the said evidence inasmuch as he had cross-examined pw 1 before the wcc. ( 4 ) BASED on the material evidence on record and upon hearing the learned counsel for the respondent nos. 1 to 5 on the one side and learned counsel for the appellant contractor on the other, the wcc had passed the impugned order. The resultant order is to the effect that the respondent nos. 1 to 5 are entitled to compensation of Rs. 78,824 from the respondent No. 6 hubli dharwad corporation and that the said respondent No. 6 in turn was entitled to indemnification of the said award amount from the appellant contractor as contemplated under Section 12 (2) of the act. ( 5 ) AS pointed out as above, the appellant contractor having been aggrieved with the second part of the order insofar as the same related to the indemnification of the award amount by him under Section 12 (2) of the Act, he is before this court to challenge the said part. ( 6 ) THE learned counsel for the appellant contractor Mr. ( 6 ) THE learned counsel for the appellant contractor Mr. S. V. Shastri had taken me through the facts of the case, the impugned order under challenge, while urging the grounds made in the instant appeal it was pointedly argued by him that the wcc would not have passed the composite order to say that respondent No. 6 hubli dhar-wad corporation was entitled to the indemnification of the award amount from his party. According to him, the recording of the said part of the order was totally without pleadings and furthermore there was no evidence adduced by other side before the wcc. It was also argued by him that the respondent No. 6 hubli dharwad corporation in no part of the objection statement it had filed before the wcc had ever pleaded that it was entitled to be indemnified with the award amount as contemplated under Section 12 (2) of the act and, therefore, he submitted that the order insofar as the same related to the indemnification of the award amount by his party to the respondent No. 6 hubli dharwad corporation was totally illegal and is, therefore, liable to be set aside in allowing the instant appeal. ( 7 ) TO substantiate his argument, Mr. Shastri also cited before this court the reported decision of Allahabad High Court in the case of Sewa Singh V. Hindustan Lever Ltd. , 1980 ACJ 309 (allahabad ). While taking me through the said decision, Mr. S. V. Shastri had also pointed out that though the facts of the case in hand are somewhat different from the facts in the reported case, the ratio of the decision therein is very well applicable to the instant case in hand for in the said decision, it was observed by the Allahabad High Court that as long as the principal did not assert his right to be indemnified, no liability could be fixed and that the principal employer could not take advantage of the findings recorded in the proceedings under Section 12 (2) of the act. ( 8 ) THEREFORE, he prayed that the instant appeal be allowed and in doing this court be pleased to set aside the impugned order insofar as the same related to the conclusion of the wcc that the respondent no. 6 is entitled to be indemnified of the award amount as contemplated under Section 12 (2) of the act. ( 8 ) THEREFORE, he prayed that the instant appeal be allowed and in doing this court be pleased to set aside the impugned order insofar as the same related to the conclusion of the wcc that the respondent no. 6 is entitled to be indemnified of the award amount as contemplated under Section 12 (2) of the act. ( 9 ) LEARNED counsel for the respondent No. 6 Mr. Shashidhar appearing for kesvy and company had at the outset submitted that the impugned order even with regard to the indemnification of the award amount by the appellant contractor to his party had to be held good in view of the clear provision under Section 12 of the act. It was also argued by him that if the sum and substance of the objection statement filed by his party as well as the appellant contractor is seen, in proper perspective, it is clear from that, when his party was the 'principal employer', the appellant contractor was the 'employer' of the deceased. In this context, Mr. Shashidhar had taken me through the provision in Section 12 of the act under the heading 'contracting'. While taking me through the provision in subsection (2) of Section 12 specifically, Mr. Shashidhar argued that the wcc in passing the impugned award had strictly followed the said provision and it is for that reason while awarding the compensation of Rs. 78,824, the wcc had also concluded that his party was entitled to be indemnified with regard to the awarded amount by the appellant contractor. While referring to the cited decision in Sewa Singh V. Hindustan lever ltd. , 1980 ACJ 309 (allahabad), Mr. Shashidhar submitted that the set of facts in the reported case are totally different from the set of facts in the case in hand. While referring to the cited decision in Sewa Singh V. Hindustan lever ltd. , 1980 ACJ 309 (allahabad), Mr. Shashidhar submitted that the set of facts in the reported case are totally different from the set of facts in the case in hand. While adverting to the said decision, it was also pointed out by him that in the decision in question, there were two rounds of proceedings, one under Section 12 (1) of the act and second under Section 12 (2) of the act and that it is with reference to the second round of proceedings under Section 12 (2) of the Act, the Allahabad High Court observed that unless and until the principal employer had specifically pleaded with regard to the indemnification of the award amount in the first round of the proceedings, the question of taking up that plea in the second round of the proceedings under Section 12 (2) of the act did not arise at all. According to him, the said decision has got no application to the case in hand. In this connection, he had also drawn my attention to the discussion on point No. 4 in the impugned order. While doing that he had submitted that the wcc had rightly observed that the appellant contractor himself had admitted that he had been entrusted with the execution of the work under a contract and it is for that reason, according to him, the respondent No. 6 the principal employer is entitled to indemnification of the compensation of the award amount under Section 12 (2) of the act. Mr. Shashidhar during the said part of the argument had drawn my attention to the discussion in the impugned order on point No. 4. To place on record, the same reads as hereunder: (omitted as in vernacular) ( 10 ) ). To sum up his arguments, Mr. Shashidhar submitted that in the instant appeal filed, the appellant contractor only tried to avoid the liability of indemnification and no further. Hence, he prayed that the instant appeal be dismissed with costs. Learned counsel appearing for the respondent nos. 1 to 5 Mr. To sum up his arguments, Mr. Shashidhar submitted that in the instant appeal filed, the appellant contractor only tried to avoid the liability of indemnification and no further. Hence, he prayed that the instant appeal be dismissed with costs. Learned counsel appearing for the respondent nos. 1 to 5 Mr. U. r. malimath, on the other side, submitted that he has got no say in the matter inasmuch as his clients were happy for they had since drawn the sum deposited by the respondent No. 6 hubli dharwad municipal corporation and that for the present, the lis is between the appellant contractor on the one side and respondent No. 6 on the other. ( 11 ) IN the light of the above arguments advanced, particularly by the contending parties, i. e. , the appellant contractor on the one side and respondent No. 6 on the other, the sole point that arises for consideration is whether the impugned order passed by the wcc insofar as the same related to conclusion with regard to the indemnification of the award amount by appellant contractor to the respondent No. 6 corporation is just and proper or not. At the outset, I have to observe here that the respondent No. 6 hubli dharwad corporation on the one side and the appellant contractor on the other had contended before the wcc that it is the other side who was responsible for compensating the claimants. It is other way to say that before the wcc they tried to avoid their side of the liability with regard to the payment of the award amount. It is pertinent to mention here that the respondent No. 6 hubli dharwad corporation in no part of the objection statement it had filed before the wcc had not even remotely contended that it was entitled to indemnification of the award amount in the hands of the appellant contractor on the ground that it was a 'principal employer', whereas the appellant contractor was an 'employer' within the meaning of Section 2 (1) (e) of the act and that it being the principal employer, it was entitled to indemnification of the award amount as contemplated under Section 12 (2) of the act. That apart, as i see it was nobody's case before the wcc with regard to the indemnification of the award amount by the other. That apart, as i see it was nobody's case before the wcc with regard to the indemnification of the award amount by the other. In this regard, I have also gone through the claim petition filed by respondent nos. 1 to 5 before the wcc, copy found at page No. 10 of the records of the wcc and also the objection statement filed by the appellant contractor found at page nos. 16 and 17 of the records and further the objection statement filed by respondent No. 6 hubli dharwad corporation found at page No. 18 (rear side of the sheet is not numbered though that page is also part of the objection statement filed by respondent No. 6 ). As i see, it is clear from the pleadings of the parties before the wcc that the plea of indemnification of the award amount by the appellant contractor to the respondent No. 6 hubli dharwad corporation had nowhere occurred and it is in the said facts and circumstances of the case, the wcc did not frame any point to be decided by him with regard to indemnification. It appears to me that it is appropriate to quote the point nos. 1 to 6 the wcc had formulated for the purpose of decision in the case. The same reads as under: (omitted as in vernacular) from the above points/issues framed to be decided by the wcc, i do not find any point on the point of indemnifying the respondent No. 6 hubli dharwad corporation by the appellant contractor at all. Therefore, it appears to me that the recording of the finding of the wcc with regard to the indemnification of the award amount under Section 12 (2) of the act by the appellant contractor was totally extraneous to the point at issue before the wcc. ( 12 ) THERE is yet another aspect of the case, that is, with regard to the finding of the wcc in the matter of the liability to pay the compensation to the respondent nos. 1 to 5. It is to be observed here that though the respondent nos. ( 12 ) THERE is yet another aspect of the case, that is, with regard to the finding of the wcc in the matter of the liability to pay the compensation to the respondent nos. 1 to 5. It is to be observed here that though the respondent nos. 1 to 5 in filing the claim petition have sought for prayer to fasten the liability both on the respondent No. 6 as well as the appellant contractor, the wcc had fastened the liability basically on the respondent No. 6 hubli dharwad corporation and that in the second part, he had concluded that the respondent No. 6 hubli dharwad corporation was entitled to be indemnified of the award amount by the appellant contractor under Section 12 (2) of the act. It appears to me that if the order part of the impugned order is closely read, one cannot find the justification for fastening of the liability of indemnification of the award amount on the appellant contractor at all. As i see it was not the case of the respondent No. 6 hubli dharwad corporation before the wcc that it had to be indemnified of the award amount by the appellant contractor and let apart it had not challenged the impugned order of the wcc insofar as the same is related to fastening the liability of paying the compensation to the respondent nos. 1 to 5. ( 13 ) THEREFORE, it appears to me that the wcc was totally in error to hold that the appellant contractor is liable to indemnify the respondent No. 6 hubli dharwad corporation with regard to the repayment of Rs. 78,824 under Section 12 (2) of the act in the absence of pleading either by the claimant nos. R-1 to r-5 or for that matter by the respondent No. 6 and further in the absence of point/issue framed by him. In substance, according to me, the said recording of the finding of the wcc is not at all based on either pleadings or evidence on record or the point at issue. ( 14 ) IN view of the above conclusion I have reached, I am of the considered view that the impugned order passed by the wcc insofar as the same related to the indemnification of the respondent No. 6 corporation by the appellant contractor is liable to be set aside. ( 14 ) IN view of the above conclusion I have reached, I am of the considered view that the impugned order passed by the wcc insofar as the same related to the indemnification of the respondent No. 6 corporation by the appellant contractor is liable to be set aside. Accordingly, the said part of the order stands set aside. The appeal, therefore, succeeds and according ly stands allowed. In the facts and circumstances of the case, i do not want to award costs in the appeal. Appeal allowed. --- *** --- .