Haribhau @ Harishchandra Jagoji ... vs Smt. Anita Wd/O Sawant Chouriwar ...
2017 Latest Caselaw 7139 Bom

 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.

(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.

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

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]

(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

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

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

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

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

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