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2014 DIGILAW 820 (HP)

Ram Pal v. Ramesh Chand

2014-07-01

DHARAM CHAND CHAUDHARY

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JUDGMENT : - Dharam Chand Chaudhary, J.(Oral): FAO(WCA) No.4177 of 2013: Shri Ram Pal, the Contractor-respondent No.1 before learned Commissioner, Employees Compensation, Una is in appeal before this Court against the order dated 2.8.2013 passed in a petition under Section 14(a) of the Workmen’s Compensation Act, hereinafter referred to as “the Act” in short whereby Remesh Chand, the petitioner-workman, respondent herein has been awarded Rs.3,32,580/- together with costs to the tune of Rs.5,000/- as compensation on account of the injuries/disability, permanent in nature, he suffered while on duty. 2. The appeal has been admitted on the following substantial questions of law:- (i) Whether the provisions of Section 12 of the Employees Compensation Act have been wrongly applied by the Ld. trial court when it was established on record that the accident occurred on account of the negligence of the employee of respondents No.2 and 3. (ii) Whether the Ld. Trial court has misread and misconstrued the evidence brought on record, which has resulted in the passing of a wrong and illegal order? 3. Facts are not in controversy, because, admittedly the respondent-Electricity Board has awarded the work of maintenance and white washing/painting of its equipments including poles installed in its 33 KV Station at Mehatpur in District Una, on contract basis to the 1st respondent, appellant herein. Respondent No.1-workman herein was engaged as one of the labourers by the appellant to execute the work so awarded to him. On 12.12.2008, the respondent-workman started painting an electric pole. Some employee working under Principal Employers, i.e. respondents No.2 and 3 negligently and all of a sudden switched on the electric supply and as a result thereof the respondent-workman received massive electric shock and due to which he fell down. He sustained electric burns and other injuries grievous in nature on his person in this accident. After this accident, he was removed to hospital for treatment. Ultimately he had to loose his left arm because the same was amputated from shoulder joint. He thereby was rendered disabled. Therefore, he claimed Rs.8,00,000/- as compensation. 4. The appellant-contractor has admitted the wages of the respondent-workman to be Rs.150/- per day and also that he received injuries on account of the negligence on the part of the employees of respondents No.2 and 3 and suffered disability, permanent in nature. 5. He thereby was rendered disabled. Therefore, he claimed Rs.8,00,000/- as compensation. 4. The appellant-contractor has admitted the wages of the respondent-workman to be Rs.150/- per day and also that he received injuries on account of the negligence on the part of the employees of respondents No.2 and 3 and suffered disability, permanent in nature. 5. The 2nd and 3rd respondents though admitted the appellant-contractor having been engaged to execute the white washing/painting work in its Mehatpur Establishment, District Una, however, denied that the respondent-workman received injuries on account of negligence attributed to their employees. 6. Learned Commissioner below after holding full trial has awarded Rs.3,32,580/- as compensation against the Principal Employer, i.e. respondents No.2 and 3, however, with liberty reserved to them to get the same recovered from the appellant-contractor. This has led in filing the present appeal on the grounds, inter alia, that since the accident has occurred on account of the negligence on the part of the employees of respondents No.2 and 3, therefore, he is not liable to indemnify the said respondents. In these circumstances, learned Commissioner was said to be not legally justified in reserving the liberty in favour of respondents No.2 and 3 to recover the amount in question from him. 7. On the other hand, respondent No.1-workman has preferred cross-objections for enhancement of the compensation on the ground that learned Commissioner has assessed the monthly income of the respondent-workman on lower side, whereas, the compensation awardable to him should have been assessed by taking his income at the enhanced rate of Rs.8,000/- per month. 8. Having gone through the record and also taking into consideration the rival submissions made by the parties on both sides, before adverting to the substantial questions of law formulated in this appeal to adjudicate the same, it is deemed appropriate to make a reference to the provisions contained under Section 12 of the Act, relevant to the present controversy, which reads as follows:- “12. Contracting. Contracting. – (1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purpose of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or 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 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 references 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 question 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 casewhere the accident occurred elsewherethat 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.” 9. It is seen that as per sub-section (1) of Section 12, supra, the compensation payable to a workman has to be calculated with reference to the wages of the workman under the employer by whom he is employed. It is seen that as per sub-section (1) of Section 12, supra, the compensation payable to a workman has to be calculated with reference to the wages of the workman under the employer by whom he is employed. Sub-section (2) of Section 12 reveals that where the principal employer is saddled with the liability to pay the compensation to the workman, he shall have a right to be indemnified by the contractor, of course, in the event of default of agreement, subject to settlement of all questions as regard to the right of indemnity by the Commissioner. 10. On behalf of the appellant-contractor, reliance has been placed on the judgment rendered by a Division Bench of the High Court of Kerala in Regional Manager, Food Corporation of India V. Sabiya Beevees and others, 1980 A.C.J. 235. In that case the principal employer was held responsible for the accident and as such saddled with liability to pay the compensation without passing any order qua indemnity by the contractor. In appeal the Bench while upholding the order passed by the Commissioner has observed that the principal himself was responsible for the situation leading to the accident and as such in the peculiar facts and circumstances of the case as well as on determination of the matter on the facts and evidence, the principal shall not be entitled to be indemnified by the contractor. In the given facts and circumstances of the case in hand, this Court is not persuaded to form an opinion that the principal employers, i.e. respondents No.2 and 3 are not entitled to be indemnified in the matter of payment of compensation by the contractor for the reason that in a claim petition filed under the Act, the workman or in a fatal accident the dependents upon him are not required to plead and prove the negligence and only that the injuries or in a fatal accident, the death of a workman occurred on account of the accident. In the case in hand, the negligence has been claimed to be on the part of Raj Kumar, who, admittedly, was working as Sub Station Attendant (SSA) in 33 KV Station, Mehatpur of the respondent-Board. He has not been made a party in these proceedings nor examined as witness. In the case in hand, the negligence has been claimed to be on the part of Raj Kumar, who, admittedly, was working as Sub Station Attendant (SSA) in 33 KV Station, Mehatpur of the respondent-Board. He has not been made a party in these proceedings nor examined as witness. The master, i.e. respondents No.2 and 3, therefore, cannot be held responsible for the negligence on the part of their servant, i.e. Shri Raj Kumar aforesaid, without his impleadment. The appellant-contractor, of course, is at liberty to initiate appropriate proceedings in accordance with general law for damages against the principal employer herein. 11. Reliance has also been placed on the judgment rendered by a single Judge of Andhr a Pradesh High Court in Triveedhi Peerayya V. Executive Engineer, Dam Division, N.S. Dam, Vijayapuri North and another, 1988 ACJ 572. The ratio of this judgment reads as follows:- “5. The learned counsel for the appellant, Mr. C. Ramachandra Rao, raised a preliminary contention under section 12 of the Workmen’s Compensation Act that the statute provided for the liability of the principal viz., the project authorities and that there was no initial liability upon the contractor. The project authorities would, however, obtain indemnification from the contractor under section 12(2) of the Act if the accident occurred on account of the negligence of the contractor. The project authorities could not straightway deduct the amount from the bills payable to the appellant. 6. No doubt, this submission, in my opinion, is correct. The project authorities, being the principal, were primarily liable under section 12(1) subject to their seeking reimbursement from the contractor under section 12(2). It was not open to them to straightway deduct the compensation amount from the bills payable to the appellant. But, inasmuch as the amount has already been paid to the workman after the amount has been so deducted, I am not interfering in this appeal on that ground. It was not open to them to straightway deduct the compensation amount from the bills payable to the appellant. But, inasmuch as the amount has already been paid to the workman after the amount has been so deducted, I am not interfering in this appeal on that ground. Having regard to the findings arrived at by the Commissioner, I am going into the main question as to whether the principal is entitled to indemnification on the basis of any negligence on the part of the contractor.” It is seen that in the case cited supra, the compensation was awarded by the Commissioner and the same had to be paid by the principal employer, i.e. the project authorities and such authorities were held entitled to deduct the amount of compensation from the bills payable to the contractor. The project authorities had deducted the amount of compensation from the bills of the contractor and paid the same to the injured/workman. The Bench on interpretation of Section 12 of the Act has held that the project authorities could not have straightway deducted the amount from the bills payable to the contractor and could have only sought indemnification against the contractor. Examining the question with regard to entitlement of the principal qua indemnification on the basis of negligence on the part of the contractor, in the light of the material available on record, the principal itself was held guilty of negligence and while setting aside the order passed by the Commissioner to the extent of permitting the deduction from the bills payable to the contractor, the principal was held responsible to refund to the contractor the amount so deducted for payment of compensation to the dependent(s) of the deceased workman under the award. 12. It is already held in para supra in this judgment that in a claim under the Workmen’s Compensation Act, the element of negligence need not to be pleaded and proved and in a case where it is established that a workman received injuries on his person and in a fatal accident died in the accident, having regard to the income and age, he (in the case of death, the dependent upon him) is entitled to the compensation to be assessed in accordance with the formulae prescribed under the Act itself. The liability to pay the compensation to the workman at the first instance, no doubt, is that of the principal, as per mandate of Section 12 of the Act, of course, subject to its right of indemnity against the contractor. 13. The object of Section 12 of the Act on its plain reading seems to extend protection to the workman in the matter of payment of compensation to him by a person who can afford to pay the same at the first instance. Sometime, the contractor is not capable to pay the compensation for a variety of reasons including his financial inability. The principal employer, however, being financially sound can afford to pay the compensation so awarded at the first instance and is thereafter entitled to recover the same from the contractor. The principal can be saddled with the liability to pay the compensation at the first instance in the event of the workman is found to be doing some work which the principal was required to do in its ordinary course of trade or business. In the case in hand, the injured workman was painting the poles nearby 33 K.V. Station of the respondent-Electricity Board at Mehatpur. There is no dispute t h at t h e work so being executed by the workman was part of ordinary trade/business of the Board and rightly so as the maintenance of the electricity lines is one of the duties of the Board. 14. In similar facts and circumstances, a Division Bench of Gujarat High Court at Ahmedabad in Bhutabhai Angadbhai and another V. Gujarat Electricity Board and others, 1987 ACJ 987 has held as follows:- “8. If the Board is required to maintain the distribution lines for the purpose of supply of electricity either to the bulk consumers or to petty consumers, then maintaining of such distribution lines will be said to be the ordinary part of the trade or business of the Board. The Board may either maintain the distribution lines by employing its own servant or, in a given case, may give a contract to do the same. The Board may either maintain the distribution lines by employing its own servant or, in a given case, may give a contract to do the same. If the Board instead of maintaining its distribution lines through its servants, which is the ordinary part of its business, gives a contract to a petty contractor, the same cannot absolve the Board from its liability of the workmen employed by the contractor for doing the ordinary part of the business of the Board in case of accident. 9. The object of enacting section 12 of the Act is to give protection to the workmen and secure compensation from the person who can pay and in case of an accident such workmen will not be dependent, sometime upon a petty contractor who will not be able to pay compensation on account of his financial inability. In our opinion, the main object of enacting section 12 of the Act is to secure compensation to the employees who have been engaged through the contractor by the principal employer for its ordinary part of the business, which, in the ordinary course, the principal employer is supposed to carry out by its own servants. 10. While imposing this liability on the principal employer, sub-section (2) of section 12 of the Act has provided that the principal employer will be entitled to be indemnified by the contractor in case the principal employer is required to pay compensation to the employees of the contractor.” 15. It is seen from the perusal of the ratio of the judgment cited supra that the Commissioner has awarded the compensation to the dependent of the deceased and saddled the contractor with liability to pay the same. The question for consideration, therefore, that the work the deceased workman doing was a work to be done by the Board being ordinary part of its trade or business or not, was considered in the light of the given facts and circumstances of that case and held that since the deceased workman was doing the work for the principal, therefore, the compensation, besides the contractor, should have been awarded against the principal also, i.e. the respondent-Electricity Board in that case. 16. 16. The point in issue in this case is also similar for the reason that here compensation as awarded, has been ordered to be paid to the respondent-workman by the principal, i.e. respondent-Board at the first instance reserving liberty in its favour to recover the same from the appellant-contractor. 17. In view of the interpretation of Section 12 in the manner aforesaid, learned Commissioner below has not committed any illegality or irregularity in reserving the right in favour of the respondent-Board to recover the compensation awarded to the respondent-workman from the appellant-contractor. It is immaterial as to on account of whose negligence the accident, in which the respondent-workman has received injuries, has occurred. The appellant-contractor is at liberty to seek remedy, if any, available to him against the respondent-Board under the general law by impleading Raj Kumar, allegedly responsible for the accident to have his version also in the matter and thereafter to establish his claim, if any, against the respondent-Board or said Shri Raj Kumar. However, so far as this appeal is concerned, in the light of the above discussion, the same being devoid of any merit deserves dismissal. Cross-Objections No.4 of 2014. 18. If coming to the quantum of the compensation awarded, this Court find no illegality or infirmity having been committed by learned Commissioner below for the reason that the injury on the person of the respondent-workman is the one specified in Part II of Schedule I to the Act. The disablement looking to the nature of the injury in terms of Section 4(1)(c) of the Act, therefore, is 80%. The income of the respondent-workman, no doubt, is assessed as Rs.4500/- per month, however, in terms of Explanation-II below Section 4(1)(b) of the Act where the monthly wages of a workman exceeds four thousand rupees, his monthly wages for the purpose of clause (a) and (b) of sub-section (1) of Section 4 has to be taken as rupees four thousand only. The present case falls within the domain of Section 4(1)(b) of the Act and the loss of earnings of the respondent-workman in terms of such provisions has to be taken 60% of his monthly income. By taking his monthly income as rupees four thousand, the 60% thereof will come to Rs.2400/-. The present case falls within the domain of Section 4(1)(b) of the Act and the loss of earnings of the respondent-workman in terms of such provisions has to be taken 60% of his monthly income. By taking his monthly income as rupees four thousand, the 60% thereof will come to Rs.2400/-. The Commissioner below has, however, taken his monthly income as Rs.2500/- against Rs.2400/- and taking into consideration his age and the loss of earning capacity vis-a-vis; disability he incurred upon in terms of item No.2 of Part II of Schedule I to the Act has assessed the loss of income as per the formulae provided under the Act correctly as is apparent from the perusal of para 55 of the impugned award. The workman has, therefore, miserably failed to make out a case for enhancement of the compensation so awarded and as such, the cross-objections, he preferred, being devoid of any merit also fail and deserve dismissal accordingly. 19. In view of what has been stated hereinabove, there arises no substantial question of law much less to speak of question of law as formulated in this appeal. The impugned award, therefore, being legally and factually sustainable, calls for no interference by this Court. Consequently, the appeal and also the cross-objections fail and the same are accordingly dismissed. Pending application(s), if any, shall also stand disposed of.