Bombay High Court
M/S Garware Polyesters Ltd vs Usha Shilwant Thorat on 24 February, 2016
Bench: T.V. Nalawade
1 FA 1624 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.1624 of 2004
* M/s Garware Polyesters Ltd.
Plot No. K-199, Waluj IA,
Taluka Gangapur,
District Aurangabad.
Through the Vice President. .. Appellant.
Versus
1)
Usha Shilwant Thorat,
Age 27 years in her own
capacity and in capacity of legal
guardian (mother) of her minor
children.
2) Padmini Shilwant Thorat.
3) Praja Shilwant Thorat.
4) Pradnya Shilwant Thorat.
All residents of Mahunagar,
New Balajinagar, Aurangabad.
5) M/s. Akshay Engineering,
K-199, Waluj IA, Aurangabad. .. Respondents.
--------
Shri. T.K. Prabhakaran, Advocate, for appellant.
Shri. S.S. Tathe, Advocate, for respondent Nos.1 to 4.
--------
CORAM: T.V. NALAWADE, J.
DATE : 24th FEBRUARY 2016
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2 FA 1624 of 2004
JUDGMENT:
1) The appeal is filed against the judgment and
award of WC Application No.25 of 1997 which was
pending before the Commissioner appointed under the
Workmen's Compensation Act 1923 at Aurangabad.
2) The claim was filed by the present respondent
Nos.1 to 4 in respect of death of one Shilwant Thorat.
Original claimant No.1 is the widow of the deceased and
other claimants are minor issues of the claimant No.1
born from the deceased.
3) It is the case of the original claimants that
deceased was employed with original opponent No.1,
Akshay Engineering Company, MIDC Waluj as a welder
and he was working there since 1-8-1994. The incident
took place in the premises of the factory of respondent
No.1 on 2-3-1996. It is the case of the claimants that
respondent No.1 - Akshay Engineering Company had
taken the work of construction of iron tanks of respondent
No.2 and the deceased was doing the welding work of
3 FA 1624 of 2004
such tank. It is contended that due to sudden supply of
electricity power of high voltage there was leakage of
current, there was sparking and the deceased sustained
the shock and burn injuries. He succumbed to the injuries
on the same day in Government hospital.
4) It is the case of the claimants that respondent
No.1 was paying monthly wages of Rs.3000/- to the
deceased and the age of the deceased was 35 years. It
was contended that after the incident notices were given
to the respondent Nos.1 and 2 but compensation was not
paid and so the proceeding was required to be filed. The
claimants relied on the evidence of the claimant and some
colleagues of the deceased and the papers prepared by
police like panchanama etc.
5) Opponent No.1, respondent No.5, Akshay
Engineering Company filed written statement and
contested the matter. It contended that opponent No.1
was in the business of manufacturing of metal tanks as
per the requirements of customers. It contended that the
deceased was the welder and was doing the job of
4 FA 1624 of 2004
fabrication on contract basis with respondent No.1 but he
was doing similar work for other companies also. Names
of such companies are given in the written statement. It is
contended that at the relevant time, Garware Polyesters
Company Limited, respondent No.2 had placed order with
respondent No.1 for manufacturing of two air receivers. It
is contended that the work of fabrication of these two air
receivers was given by respondent No.1 to deceased
Shilwant. It is contended that the deceased was expected
to complete this work within two months and raw material
and supply of electricity was given by respondent No.1.
The fact of the incident was not disputed by respondent
No.1. However, respondent No.1 contended that the
deceased was not the workman for the purpose of WC Act
1923 and so respondent No.1 is not liable to pay any
compensation. It was also denied that the respondent
No.1 was paying monthly salary of Rs.3000/- to the
deceased. It was contended that respondent No.1 was to
pay Rs.15,000/- to the deceased for the fabrication work of
the aforesaid two air receivers.
5 FA 1624 of 2004
6) Respondent No.2, Garware Polyesters Limited
filed written statement and contested the matter. It denied
that it had appointed respondent No.1 as a contractor. It
denied that it had hired deceased as workman directly or
through respondent No.1. It contended that the deceased
never worked on the establishment of respondent No.2. It
contended that respondent No.1 was independent
employer and the deceased was working in the premises
of respondent No.1. It was contended that respondent
No.1 was not dong business only for the respondent No.2
and respondent No.2 was not the only customer of
respondent No.1 and there was relationship of purchaser
and seller between respondent Nos.2 and 1. It denied that
it is liable to pay compensation in respect of the death.
7) Before the Commissioner the claimants gave
evidence and respondent No.1 also gave evidence. The
Commissioner held that respondent No.1 was doing the
work of fabrication of two air receivers for respondent
No.2 and for that work the deceased was engaged,
employed by respondent No.1 and while doing this work,
the incident in question took place. The Commissioner has
6 FA 1624 of 2004
directed both the respondents to pay compensation jointly
and severally.
8) While admitting the appeal this Court has held
that substantial questions of law need to be formulated on
the basis of grounds (i) and (iv) mentioned in the appeal
memo. So, following substantial questions of law are
involved in the matter.
(i) Whether a purchaser/customer is liable for
workmen compensation of a person/workman of the
supplier ?
(iv) Whether the WC Commissioner has
jurisdiction to proceed against a third party, unless
he is an employer, contractor, or indemnifier ?
9) The original claimants have come with specific
case that the deceased was employed by respondent No.1
Akshay Engineering Works and respondent No.1 was
making payment on monthly wages basis. Though the
claimants have contended that at the relevant time the
work of construction of two air receivers for respondent
No.2 was going on in the premises of respondent No.1, it
7 FA 1624 of 2004
can be said that the claimants had no personal knowledge
about the work. It is not disputed that the incident took
place in the premises of respondent No.1 and there is
specific admission of respondent No.1 that it had supplied
raw material and electricity for the fabrication work. He
has also admitted that the amount was to be paid for this
work to the deceased by respondent No.1.
10) Whether the respondent No.1 had appointed
respondent No.1 as the contractor could have been
decided on the basis of material which could have been
produced by the respondent No.1 or respondent No.2.
Respondent No.1 had come with specific case that
respondent No.2 had placed order with him for
manufacture of two air receivers. If this contention is
accepted as it is, it can be said that respondent No.2 was
to purchase the two air receivers from respondent No.1.
No record in respect of this order was placed before the
Commissioner by respondent No.1 when respondent No.2
has denied that respondent No.1 was the contractor of
respondent No.2. On the other hand, respondent No.1
has specifically contended that the deceased was working
8 FA 1624 of 2004
for him though on contract basis at the relevant time. In
view of these circumstances and the case of respondent
No.1 that he himself had engaged the deceased on
contract basis for fabrication work, inference was not
possible that the deceased was employed either directly or
through respondent No.1 by respondent No.2. Even if the
case of the respondent No.1 and his evidence is accepted
as it is, it can be said that respondent No.2 wanted to
purchase two air receivers from respondent No.1 and it
was up to respondent No.1 to manufacture such two air
receivers and sell them to respondent No.2. If the
definitions of employee and workman given in the WC Act
are kept in mind it cannot be said that the deceased was
employed by respondent No.2 either directly or through
respondent No.1. There is virtually no record to prove
such case. Everything is denied by respondent No.1. This
Court has no hesitation to hold that the Commissioner has
committed error in holding that present appellant,
respondent No.2 had employed the deceased. No liability
could have been fastened on the appellant in respect of
death of the person who was working for respondent No.1
in the premises of respondent No.1. The decision given by
9 FA 1624 of 2004
the Commissioner cannot sustain in law. In the result, the
aforesaid points are answered accordingly in negative and
following order is made :-
11) The appeal is allowed. The judgment and order
of the Commissioner fastening the liability on the
appellant is hereby set aside and the claim made as
against respondent No.2, appellant stands dismissed. The
claimants can recover the amount from respondent No.1.
If the compensation is deposited in this Court or with the
Commissioner by the appellant, it is to be returned to the
appellant.
Sd/-
(T.V. NALAWADE, J. )
rsl
