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Madras High Court · body

2015 DIGILAW 1788 (MAD)

A. Thankasamy v. Rajam

2015-04-01

D.HARIPARANTHAMAN

body2015
JUDGMENT One Kumaresan died in an accident that took place in the premises of the 8th respondent railways. The appellant herein was a contractor appointed by the 8th respondent railways to carry out cerain civil works. Thiru Kumaresan was employed by the appellant. The 7th respondent was Maistry, who was looking after the work of the appellant. The said Kumaresan while doing work died on 10.10.2002, during the course of employment. The legal heirs of Kumaresan namely, respondents 1 to 6 filed W.C.No.17 of 2003 on the file of the Deputy Commissioner of Labour/Commissioner for Workmen Compensation, Tirunelveli, claiming compensation for the death of Kumaresan. 2. The Deputy Commissioner of Labour passed an order dated 28.10.2005, holding that the principal employer namely, 8th respondent is at the first instance is liable to pay compensation. Accordingly, a direction was issued to the 8th respondent railways to pay compensation and recover the same from the appellant, as he was a contractor, to whom the work was entrusted by the 8th respondent. The Deputy Commissioner of Labour awarded compensation of Rs.3,04,992/-. 3. This appeal is against the aforesaid order on the ground that on the date of accident, there was no contract between the 8th respondent and the appellant and therefore, the Deputy Commissioner of Labour was not correct in permitting the 8th respondent railways to recover the compensation from the appellant. 4. Heard both sides. 5. The learned counsel for the appellant has heavily relied on Ex.R5-Contract Agreement, dated 07.11.2002 and submitted that in view of Ex.R5, the Deputy Commissioner of Labour was not correct in permitting the 8th respondent railways, to recover the compensation from the appellant. 6. On the other hand, the learned counsel for the respondents 1 to 6/claimants and the 8th respondent railways submitted that factually, the Deputy Commissioner of Labour found that the appellant was a contractor carrying out the work for the 8th respondent railways and the deceased was his workman and therefore, the same cannot be interfered with in the appeal filed under Section 30 of the Workmen Compensation Act. 7. I have considered the submission made by either side. 8. It is relevant to extract the word 'employer' as defined in Section 2(1)(e) of the Workmen's Compensation Act:- "2(1)(e). 7. I have considered the submission made by either side. 8. It is relevant to extract the word 'employer' as defined in Section 2(1)(e) of the Workmen's Compensation Act:- "2(1)(e). "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him." 9. Section 12(1) of the abovesaid Act deals with 'contracting' and it reads as follows: "12.Contracting:- (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 contract 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 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 theemployer by whom he is immediately employed." 10. It is relevant to extract the following passage from the order passed by the Deputy Commissioner of Labour:- 11. The findings of the Deputy Commmissioner of Labour is extracted hereunder:- 12. The Main object of Section 12 of the Workmen's Compensation Act has been explained in Bhutabhai Angadbhai and Anr. v. Gujarat Electricity Board and Others, reported in 1987 (1) LLN 156, wherein, the Gujarat High Court, at Paragraphs 9 and 10, held as follows:- "9....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. 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.'' 13. The intention of the legislation in enacting Section 12(1) of the Workmen Compensation Act, has been explained by the Division Bench of Mysore High Court in M.R.Mishrikoti v. Muktumsab Hasansab Asoti reported in 1973 L.I.C. 997 wherein, at Paragraph 6, it is held as follows: "In the aforesaid provision the term 'employer' is used in contradistinction to the injured workman or the dependent of a deceased workman who had made an application for compensation and who can also appeal from an order of the Commissioner if he feels aggrieved by such order. The intention of the Legislature in enacting that proviso appears to be that the injured workman or the dependent of a deceased workman who has been awarded compensation by the Commissioner, should not be put to any difficulty in realising such amount of compensation on account of any recalcitrance of the employer or on account of the vicissitudes of his (the employer's) financial position after he prefers an appeal. This object of the Legislature will be defeated, if we accept the interpretation put forward by Mr. Joshi and hold that the proviso is applicable only to an appellant who admits that he was such employer and not to an appellant who disputes the finding by the Commissioner that he was such employer. Hence, we are unable to accept the contention of Mr. Joshi that the appellant could file the appeal without depositing the amount of compensation as he was denying his having been the employer in relation to the deceased workman." 14. In Public Works Department v. Commr., Workmen Compensation reported in 1981 Lab.I.C. 493, while explaining the difference between "trade" and "business", the Division Bench of Jammu and Kashmir High Court, at paragraph 4, held as follows:- "4. Unlike the word "trade" which merely connotes commercial activity, the word "business" is of much wider import and may be used in different contexts in different senses. Unlike the word "trade" which merely connotes commercial activity, the word "business" is of much wider import and may be used in different contexts in different senses. Used in one context, it may imply a particular occupation or employment to earn livelihood or gain, whereas used in a different context it may mean an activity which engages time, attention, or labour as a principal serious concern or interest. Its connotation may thus vary with the varying contexts in which it is used. In taxing statutes for instance, the word "business" will always denote an activity carried out with the object of earning profit, though the same may not be true when used in relation to other activities. Used in broader sense, a person building his residential house or a Government constructing a road, may well be said to do business in so far as the said activity engages his or its time, attention or labour as principal servious concern or interest." 15. While explaining the scope of Section 12 of the Workmen's Compensation Act, the Kerala High Court in Vijayaraghavan v. Velu reported in 1973 Lab IC 1520, laid down the following four essential conditions to be satisfied, before applying Section 12 of the Act:- "(i) That the person (called the principal) is carrying on a trade or business and, in the course of or for the purpose of that trade of business, engages a contractor to execute the work. (ii) That work is ordinarily a part of the trade or business of the principal. (iii) The accident which gives rise to the liability for compensation must have occurred on, in or about the premises on which the principal has undertaken, or usually undertakes to execute the work or which is in his control or management. (iv) The accident must have occurred while the workman was in the course of his employment in executing the work." 16. Upon perusal of the order passed by the Deputy Commissioner of Labour, I am of the view that the Deputy Commissioner of Labour has recorded a factual finding that at the time of accident, the deceased was employed by the appellant who was a contractor for the purpose of carrying out the works for the 8th respondent railways who was the principal employer. There is an abundunt evidence to the aforesaid effect. There is an abundunt evidence to the aforesaid effect. It is well settled that unless there is any perversity, this Court could not interfere with the factual finding recorded by the Deputy Commissioner of Labour in the appeal under Section 30 of the Workmen Compensation Act. 17. In view of Section 12(1) of the Workmen Compensation Act and in the light of the decisions referred to above, I am not inclined to interfere with the order passed by the Deputy Commissioner of Labour as sought for by the appellant, to delete the portion permitting the 8th respondent railways to recover the compensation from the appellant. Accordingly, the Civil Miscellaneous Appeal fails and the same is dismissed. No costs. The claimants are permitted to withdraw the entire award amount. Consequently, M.P(MD)No.1 of 2007 is closed.