FA 685.10.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.685 OF 2010
1] Haribhau @ Harishchandra Jagoji
Singade, Aged 49 years,
Occupation - Service in Private
Employment, R/o. House No.219,
Gowerdhan Nagar, Tumsar,
District-Bhandara and another.
2] Alka w/o Haribhau @ Harishchandra
Singade, Aged 45 years,
Occupation-Service, R/o. Gowardhan
Nagar, Tumsar, District-Bhandara.. APPELLANTS
.. VERSUS ..
1] Smt. Anita wd/o Sawant Chouriwar,
Aged 31 years, Occupation-Household
and others.
2] Ku. Khushbu d/o Sawant Chouriwar,
Aged 5 years.
3] Ku. Deepanshi d/o Sawant Chouriwar,
Aged about 2 years.
Respondents 2 and 3 minor, through
their natural guardian respondent no.1
R/o. Gowardhan Nagar, Tumsar,
District-Bhandara. .. RESPONDENTS
..........
Shri Shantanu S. Ghate, Advocate a/w Ms. Rucha Pande,
Advocate for Appellants,
None for Respondents though duly served.
..........
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FA 685.10.odt 2
CORAM : KUM. INDIRA JAIN, J.
DATED : SEPTEMBER 14, 2017.
ORAL JUDGMENT This appeal filed under section 30 of the Workmen's Compensation Act, 1923 (for short "the Act") raises the following substantial question of law.
"Whether the owner of the house who had engaged the contractor for polishing the tiles would be an employer of the contractor who expired while polishing the tiles, for which he was engaged by the owner of the house.?
2] For the sake of convenience, parties are referred in their original status as they were referred before the learned Commissioner as applicants and non-applicants. 3] The facts giving rise to the present appeal may be stated as under :
(i) Applicant no.1 is wife and applicant nos.2 and 3 are minor daughters of deceased Sawant Chouriwar. Sawant Chouriwar was doing work of mounting, rubbing and polishing tiles.
(ii) Non-applicant no.1 is husband of non- applicant no.2. They were residing in a dwelling house situated at Gowardhan Nagar, Tumsar.
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(iii) It is the case of applicants that non- applicants entrusted the work of fitting and shifting tiles at their house and engaged services of Sawant to carry on the said work. On 12.6.2005, deceased was polishing tiles of the rooms. That time, electric current passed through machine and he died on the spot.
(iv) According to applicants, Sawant met with his death in the course of employment and non-applicants were liable to pay compensation to them. They filed application under the Workmen's Compensation Act, 1923 and claimed Rs.5,76,420/- against non-applicants. 4] The application was opposed by non-applicants vide reply dated 26.3.2007. It was submitted that demand made by applicants is untenable as it does not fall within the ambit of Section 12 (2) of the Workmen's Compensation Act. Non-applicants submitted that deceased brought the machine and as he did not take safety measure, electric current passed through the machine for which non- applicants cannot be held liable. The submission is that accident occurred due to defective machine and lack of care on the part of deceased.
::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 4 5] Applicant no.1 examined herself in support of claim. In addition to oral evidence, reliance came to be placed on notice of sudden death (Exh.9), inquest panchanama (Exh.10), spot panchanama (Exh.12) and notice sent to non-applicants. Non-applicant no.1 examined himself in support of defence. Upon considering the oral and documentary evidence adduced by the parties, learned Commissioner came to the conclusion that Sawant Chauriwar died in the course of service and held the non- applicants liable to pay Rs.3,79,120/- towards compensation along with interest at the rate of six percent per annum. Being aggrieved thereof, non-applicants have preferred the present appeal.
6] The learned counsel for appellant submitted that in the absence of relationship of employer and employee between non-applicants and Sawant Chauriwar, liability to pay compensation could not be saddled on non-applicants. It is submitted that the work assigned to deceased was in the nature of civil contract for a particular purpose and he was not a "workman" within the meaning of Section 2(1)(n) of the Act. It is submitted that applicants engaged services of deceased to carry out a particular work of fitting, rubbing ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 5 and polishing the tiles. The nature of work assigned to deceased clearly indicates that non-applicants were not employers and deceased was not an employee of non- applicants. Learned counsel submits that observations of learned Commissioner that deceased was in employment of non-applicants are contrary to evidence brought on record. Learned counsel submits that facts and evidence adduced by the parties clearly show absence of relationship of employer and employee and in such a situation compensation ought not to have been granted by the learned Commissioner. In support of submissions, learned counsel relied upon :
(i) Lakshminarayana Shetty .vs. Shantha and another, [2002 (94) FLR 658 (SC).
(ii) United India Insurance Company Limited .vs.
Ashok s/o Gulabrao Kale and another [2016 (4) Mh.L.J. 464-Bombay High Court-
Nagpur Bench]
(iii) Bharat Earth Movers Limited .vs. Smt. Bhagyam and another [1975 LAB.I.C.341- Karnataka High Court]
(iv) Ganesh Foundry Works .vs. Bhagwanti and others, [FAO 107/1979-Punjab and Harayana High Court].
(v) Dr. B. Radhakrishna .vs. Smt. Gouramma and others, [2000 LAB. I.C. 1518] [Karnataka High Court] ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 6
(vi) Girdhari Lal Sharma .vs. M/s. Eldeco Housing and Industries Limited [2003 III CLR 761
- Allahabad High Court-Lucknow Bench.
(vii) Ajay Singh Lal .vs. Somwati (Smt.) and another, [2005 I CLR 304 (Delhi High Court]
(viii) Om Parkash Batish .vs. Ranjit alias Ranbir Kaur and others [2008) 12 SCC 212.
7] The non-applicants though served did not contest the appeal. With the assistance of the learned counsel for applicants, perused record. Having given due consideration to submissions as canvassed, this court is of the view that appeal deserves to be allowed for the following reasons. 8] The accident in question occurred on 12.6.2005. The expression "workman" is defined under Section 2 (1)(n) of the Employee's Compensation Act, 1923. The definition of "workman" was amended by Act 46 of 2000 with effect from 8.12.2000. The pre-amendment definition of "workman" under section 2 (1)(n) of the Employee's Compensation Act as it then stood reads thus :
"workman" means any person other than a person whose employment is a casual nature and who is employed otherwise than for the purposes of the employer's trade or business who is a railway servant as defined in clause (34) of section 2 of the Railway's Act, 1989 (24 of 1989) not permanently employed in any administrative district or sub-divisional ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 7 office of a railway and not employed in any such capacity as is specified in Schedule II or..."
9] After the amendment words "other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business" came to be omitted.
10] The principal question in the present case is, whether owners of a dwelling house, who engaged deceased as contractor for polishing the tiles, would be employers of contractor, who expired while polishing the tiles, for which he was engaged by the owners of the house. In Central Mine Planning and Design Institute Limited (supra), it has been held by the Hon'ble Supreme Court that the expression "workman" did not intend to cover a casual worker. Consistent view has been taken by the various High Courts and the law is now well settled that a person doing contractual work would not qualify as a 'workman' under the Act.
11] It is not in dispute that non-applicants assigned the work of polishing tiles of their dwelling house to the deceased. The evidence clearly indicates that a civil ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 8 contract for fitting and polishing the tiles was given to the deceased. The learned Commissioner in paragraph ten of the order observed that deceased worked continuously for one month one week and this fact alone is sufficient to come to the conclusion that deceased was in service of non- applicants. It is then observed that if the contractor himself is working, he falls within the definition of "workman" under the Act.
12] In order to appreciate the contentions of the parties, it would be necessary to refer here the provisions of Section 12 of the Employee's Compensation Act, 1923 which read as under :
"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 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 9 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."
13] A bare reading of this section makes it clear that appellants herein were not the persons who had engaged the contractor to perform a particular job which was ordinarily part of trade or business as required under section 12 of the Employee's Compensation Act, 1923. The deceased had undertaken work of fitting and polishing the tiles and appellants by engaging the deceased as a contractor to carry out the said work cannot be said to be employers of the deceased.
14] In that view of the matter, substantial question of law is answered by holding that in the absence of a ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 10 employer-employee relationship between appellants and deceased, learned Commissioner, simply relying upon the period of service rendered by deceased, was not justified in holding that the appellants were liable to pay compensation. In the result, appeal deserves to be allowed. Hence, the following order :
ORDER
(i) First Appeal No.685/2010 is allowed.
(ii) The judgment and order dated 9.3.2010 passed by the Labour Commissioner and Judge, Labour Court, Bhandara in F.W.C.A. No.7/2006 is quashed and set aside.
(iii) F.W.C.A. No.7/2006 stands dismissed.
(iv) No order to costs.
(Kum. Indira Jain, J.)
15] At this stage, learned counsel for appellants
submits that entire decreetal amount was deposited and part of the same has been withdrawn by the respondents. The learned counsel seeks permission to withdraw the amount lying with the court and permit the appellants to recover the amount already withdrawn by the respondents. Permission to withdraw the amount lying with the court is ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 ::: FA 685.10.odt 11 granted. So far as recovery is concerned, appellants are at liberty to take appropriate action in accordance with the law.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 25/09/2017 ::: Downloaded on - 26/09/2017 00:03:57 :::