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Tripura High Court · body

2016 DIGILAW 29 (TRI)

Naresh Chandra Bhowmik v. Kanan Das

2016-02-03

DEEPAK GUPTA

body2016
JUDGMENT : This appeal is directed against the award passed by the learned Commissioner, Workmen’s Compensation, on 9th March, 2011 in case No.TS(W/C) No.15 of 2007. 2. The claimant appellant is a labourer. She was employed for throwing water on the wheel of the road roller. Her hand was crushed under the wheel of the road roller and finally her hand was amputated. She filed a petition for compensation under the Workmen’s Compensation Act, 1923. 3. The case of the claimant in the claim petition was that she was engaged by the opposite parties i.e. Sri Naresh Chandra Bhowmik, contractor and the officers of the Public Works Department(PWD). The case set up by the officials of the State was that the injured claimant was not employed by the State but was an employee of the contractor. On the other hand, the contractor took a stand that the injured was an employee of the State. According to the contractor, for the days when the injured was working for contractual work which was being undertaken by the contractor she was being paid by the contractor but according to him, the injured was actually an employee of the State. It has also come in evidence that the Inspector of Factories, South Tripura District awarded an amount of Rs.1,84,795/- in favour of the claimant against the Executive Engineer(PWD), Amarpur Division. It was contended that this second petition was not maintainable. 4. The learned Commissioner, Workmen’s Compensation after recording evidence came to the conclusion that the injured was an employee of the contractor. He held that the claimant was entitled to compensation of Rs.2,85,012/- along with interest @ 6% per annum from the date of accident and further ordered that in case the amount is not deposited within 1(one) month then the interest shall be @ 12% per annum. With regard to the amount deposited under the Factories Act, 1948 the learned Commissioner gave no finding. 5. The appeal was admitted on the following substantial questions of law : “(i) Whether the learned Commissioner, Workmen’s Compensation was right in holding that the claimant was an employee of the Contractor and therefore, the Contractor was liable to indemnify the State. (ii) Whether the amount awarded to the claimant under the Factory Act is required to be set off against the amount awarded under the Workmen’s Compensation Act, 1923.” 6. (ii) Whether the amount awarded to the claimant under the Factory Act is required to be set off against the amount awarded under the Workmen’s Compensation Act, 1923.” 6. The first question is, whether the injured was an employee of the contractor or of the State. The claimant when she stepped into the witness box in her examination-in-chief like in the claim petition did not specifically state with whom she was employed. She did not say clearly whose employee she was. In cross- examination by the contractor she stated that the road roller belonged to the Public Works Department, Government of Tripura and she also stated that she was employed by the department of Public Works. However, while being cross-examined by OP Nos.2, 3 and 4 she stated that she worked with Naresh Chandra Bhowmik(contractor). She also stated that Naresh Chandra Bhowmik used to pay her wages. She further stated that Naresh Chandra Bhowmik used to pay the wages through the Head Mistri. 7. Sri Amit Das is another labourer who is an eye-witness. He was also working in the same contract and he has stated that the claimant was employed by the contractor. In cross-examination by the contractor, he denied the suggestion that the injured was employed by the PWD. He in further cross-examination by the State stated that he himself had been appointed by the contractor Nareshbabu. The respondent-State examined one Sri Samar Lal Roy Executive Engineer who stated that the claimant was an employee of the contractor and the liability to pay the compensation was of the contractor. 8. The contractor appeared as his own witness and his version was that the injured was an employee of the State but he was paying her wages only for the work relating to the contract. According to the contractor, the injured was employed by the State along with the driver to look after the road roller and she was not his employee. In cross-examination, he stated that he had not furnished before the Commissioner a list of the workers which as per agreement he was supposed to submit to the department. He further volunteered that this list he had given to the department. He denied the suggestion that he was the employer of the claimant. In cross-examination, he stated that he had not furnished before the Commissioner a list of the workers which as per agreement he was supposed to submit to the department. He further volunteered that this list he had given to the department. He denied the suggestion that he was the employer of the claimant. Thereafter the State again re-examined Sri Samar Lal Roy the Executive Engineer who stated that after inspection of the official record he found that the driver of the road roller was a member of the staff or the department but the claimant injured workman was an employee of the department. According to him, she was an employee of the contractor. 9. The learned Commissioner came to a finding of fact that the injured was an employee of the department. Under Section 30 of the Workmen’s Compensation Act, 1923 an appeal is maintainable from the order of the Commissioner only when a substantial question of law is involved in the same. The finding whether the injured was an employee of the contractor is a finding of fact and no question of law much less a substantial question of law is involved. I have read the evidence and the finding given by the learned Commissioner can neither be said to be perverse nor can it be said to be a finding based on no evidence. Therefore, the finding of fact given by the learned Commissioner cannot be interfered with. 10. The second question is, whether the amount awarded under the Factories Act, 1948 is required to be set off against the amount awarded under the Workmen’s Compensation Act, 1923. An award of a Factories Inspector under the Factories Act is also a statutory award and a claimant cannot claim both under the Factories Act, 1948 as well as under the Workmen’s Compensation Act, 1923. The stand of the claimant before the Commissioner was that she had filed no application under the Factories Act, 1948 and she had also stated that she had not received any compensation whatsoever under the Factories Act, 1948. The claimant is not entitled to amounts under both the Acts and it is held that she will only be entitled to the amount payable under the Workmen’s Compensation Act, 1923. The claimant is not entitled to amounts under both the Acts and it is held that she will only be entitled to the amount payable under the Workmen’s Compensation Act, 1923. The State may approach the Factories Inspector and if the amount which has been deposited is still lying with the Factories Inspector the State can withdraw the amount from the Factories Inspector. In case the amount has been paid to the claimant then the State shall be entitled to adjust the amount from the amount payable by it under the Workmen’s Compensation Act, 1923. 11. The next question which arises is, whether the contractor can be burdened with the liability to pay the compensation or not. In this behalf reference may be made to Section 12 of the Workmen’s Compensation Act, 1923 which 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 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 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 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.” A bare reading of Section 12 of the Workmen’s Act leaves no manner of doubt that the Workmen’s Compensation Act which is a beneficial, social, welfare legislation was enacted in such a way that if the contractor is working for some other party, that other party shall be deemed to be the employer in terms of Section 12(1) of the Act. The deemed principal would be liable to pay the compensation to the workman employed in the execution of the work. However, Section 12(2) of the Act clearly lays down that where the principal is liable to pay compensation under this section, it is entitled to be indemnified by the contractor or any other person from whom the workman could have recover the compensation. Therefore, the State is entitled to recover the amount of compensation from the contractor. The purpose of Section 12(2) of the Act, is to ensure that the workman does not suffer and he gets his compensation but he is an employee of the person who gave him employment and he has a right to recover compensation from that employee. 12. Therefore, the State is entitled to recover the amount of compensation from the contractor. The purpose of Section 12(2) of the Act, is to ensure that the workman does not suffer and he gets his compensation but he is an employee of the person who gave him employment and he has a right to recover compensation from that employee. 12. Sub-section (2) of Section 12 reads as follows : “(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.” This sub-section makes it clear that where the principal is liable to pay compensation he shall be entitled to be indemnified by the contractor and this indemnification has to be for the complete amount. 13. The learned Commissioner has wrongly held that the claimant is entitled to interest @ 6% per annum. Whether the amount of compensation has been deposited within 1(one) month or not the amount of interest cannot be less than the statutory rate of 12% prescribed under the Workmen’s Compensation Act, 1923. 14. In view of the above, the appeal filed by the claimant is rejected and the State is directed to deposit the amount of compensation i.e. Rs.2,85,012/- along with the interest @ 12% per annum in the Registry of this Court within 3(three) months from today if not already deposited with Workmen’s Compensation Commissioner. The State after depositing the amount can recover the same paid by it from the contractor. As already clarified above, the State can withdraw the amount if any deposited with Workmen’s Compensation Commissioner under the Factories Act, 1948 and in case the claimant has already received the amount payable under the Factories Act,1948 then the State can file an application before the Workmen’s Compensation Commissioner to reduce the amount by the amount paid under the Factories Act, 1948. The appeal is disposed of. The appeal is disposed of. Send down the LCRs forthwith.