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2014 DIGILAW 3369 (MAD)

Appavu Samraj v. P. Raju

2014-09-16

K.KALYANASUNDARAM

body2014
Judgment : 1. Challenging the award passed by the learned Commissioner for Workmen's Compensation, Madurai, in W.C.No.242 of 1999, the appellants filed this appeal. 2. The first respondent instituted a case before the Commissioner for Workmen's Compensation, Madurai, contending that the appellants were constructing a house at Plot No.867, Karpaga Nagar, Moondru Mavadi, K.Pudur, Madruai. The claimant, while doing the construction work, fell down from the building and thereby, sustained fracture on both bones on his right leg. The claimant was immediately admitted in the Government Rajaji Hospital, Madurai and a case was also registered in Crime No.169 of 1999 with regard to the accident. The claimant further contended that he sustained injuries during the course of the employment and therefore, he is entitled for compensation of Rs.2,00,000/-. 3. Resisting the claim petition, the applicants filed counter affidavit, disputing the relationship of the employer and the employee and therefore, they are not liable to pay compensation. 4. Before the Commissioner, the claimant has examined two witnesses and marked Exs.A1 to A7. On the side of the appellants, no witness was examined, but they produced only Ex.C1. 5. The Commissioner, after considering the oral and documentary evidence, has come to the conclusion that the claimant was an employee under the 2nd appellant and he sustained injuries during the course of employment on 28.11.1998 and awarded compensation of Rs.48,921/-. Aggrieved over the award of compensation, the appellants have filed this appeal. 6. The Civil Miscellaneous Appeal was admitted on the following Substantial Questions of Law:- “1. Whether the appellants can be considered as principal employer to the first respondent/appellant though the second and third respondents engaged the first respondent/applicant on contract basis to complete the centering works in the residential building of the appellants? 2. Whether the appellants are liable to pay compensation to the first respondent/appellant when they are not the principal employer to the first respondent? 3. What are all essential factors to hold a person as principal employer?” 7. Heard Mr.B.Saravanan, learned counsel appearing for the appellants and Mr.Ashok Kumar, learned counsel appearing for the 1st respondent. 8. The learned counsel appearing for the appellants submitted that the award is contrary to the provisions of Workmen's Compensation Act, as the Commissioner has failed to note that the appellants are not the principal employers of the 1st respondent. Heard Mr.B.Saravanan, learned counsel appearing for the appellants and Mr.Ashok Kumar, learned counsel appearing for the 1st respondent. 8. The learned counsel appearing for the appellants submitted that the award is contrary to the provisions of Workmen's Compensation Act, as the Commissioner has failed to note that the appellants are not the principal employers of the 1st respondent. It is further submitted that there is no privity of contract between the appellants and the claimant and therefore, he is not entitled for compensation under Workmen's Compensation Act. 9. Per contra, the learned counsel appearing for the 1st respondent/claimant made submission in support of the award passed by the Workmen's Compensation Tribunal. 10. The main contention of the appellants is that the claimant himself has admitted that he is a centering contractor, the construction work was entrusted to Venus Civil Engineers, the 3rd respondent and therefore, he cannot be treated as a workman under the appellants. The claimant has produced Ex.A1, a copy of the FIR, Ex.A2 Wound Certificate, Ex.A3 Agreement signed by the claimant and the respondent 3 and 4 in the claim petition. In the evidence, the claimant has admitted that he received amount from the 2nd respondent in the presence of the 3rd respondent and he has not directly received money from the 4th respondent. Ex.A3 agreement shows that the respondents 3 and 4 in the claim petition, have accepted the injuries sustained by the claimant and they have paid Rs.3,000/- to the claimant. 11. The Commissioner, taking into consideration that major contribution was made by the 3rd respondent, has come to the conclusion that the claimant has proved the employment with the 3rd respondent, namely M/s. Venus Civil Engineers, Madurai. 12. The Commissioner has further relied upon the judgment reported in 1992 ASC 160 [Champalal vs. Daryavbai and others], in which the High Court of Madhya Pradesh has held that even though the workman has taken the work as independent contractor, he will not cease to be a workman only by virtue of the contract, if he agrees to work himself along with others. It is further observed that the crucial test is that if the person agrees to work personally, then he is a workman, but if he does not work personally and gets the work done from others, then he is an independent contractor. 13. It is further observed that the crucial test is that if the person agrees to work personally, then he is a workman, but if he does not work personally and gets the work done from others, then he is an independent contractor. 13. In the case on hand, the claimant has proved that he has sustained injuries, when he was engaged in the construction work of the 2nd appellant. 14. Even though, the claimant had taken sub-contract from the 3rd respondent, he sustained injury in the course of his employment. Admittedly, the 2nd appellant is the owner of the building. As per the provisions of section 12 of the Workmen's Compensation Act, the 2nd respondent is the principal employer and she is liable to pay compensation to the claimant. 15. The Commissioner for Workmen's Compensation, Madurai, on the basis of the evidence available on record, has held that the 2nd respondent is liable to pay compensation, which does not warrant any interference by this court. The substantial questions of law are answered accordingly. 16. In the result, the award of the Commission for Workmen's Compensation is confirmed and the appeal is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.