Ajay Singh Lal vs Smt. Somwati And Anr.
2004 Latest Caselaw 1045 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the order dated 31.10.2003 of the Commissioner, Workmen's Compensation in WCD/162/96 whereby the Commissioner had held the appellant herein to be principal employer and thereby foisted a joint liability upon him to discharge the award.

2. Brief facts of the case as noted by the Commissioner, Workmen's Compensation are as follows:-

"..... that lat Sh.Raju son of Sh.Nathua was employed as Baledar with the respondent no.1 for the completion of work of respondent no.2. The deceased was drawing wages @ Rs.1800/- per month and he was 30 years of age at the time of his death i.e. 20-7-96. On 20-7-96 the deceased Sh.Raju was on his duty at the work place i.e. E-115, Ashok Vihar, Delhi. He was working as Baledar in the construction work and the said premises was owned by Respondent No.2. While working Sh.Raju Died due to accident by slipping from the pad at the time of white-washing etc. at premises E-115, Ashok Vihar, Delhi. It has been also stated that the respondents have admitted the factum of accident in their Deed of Settlement dated 9-12-96 filed in this Hon'ble Court. Notice U/s 10 of the Workmen's Compensation Act was not served on the respondents due to the reason that the respondents were having the notice of accident since the day of its occurrence. The applicants/petitioners are entitled to compensation as per W.C.Act from the respondents-respondent No.1 being contractor of the work, respondent no.2 being owner of the premises. They are also entitled to received penalty @ 50% and interest @ 12% per annum from the date of accident till realization. At the time of filing of the claim petition Sh.Bhagwan Dass Singhal was made a party as respondent no.2 and thereafter during the course of proceedings on the application filed by the applicant/claimant under order 1 Rule 10 r/w section 151 CPC Sh.Ajay Singhal son of Sh.Bhagwan Dass Singhal was imp leaded as respondent no.2 in the array of respondents being the real owner of the premises in question.

Notices were served to the respondents and respondent No.1 in his reply has stated that he was not employer of the deceased. Respondent no.1 along with other labourers namely Bhanwar Singh, Puran Lal as well as the deceased Raju under took to do the installation work of stones in the premises of respondent no.2 and he was simply the co-worker with the deceased and he along with other co-workers remained under contractual employment of respondent no.2. It was the respondent no.2 who was responsible for making the payment towards the work done by them and it was the responsibility of the respondent no.2 to ensure the safety measures for the respondent no.1 including his co-workers. He has also stated that the premises in which the accident took place is belonging to respondent no.2 and on the date of accident I.e. 20-7-96 he was out of Delhi and had gone to Hindon, Rajasthan. He has further stated that the claim application has not been filed in accordance with the statutory provisions as contained in the Workmen's Compensation Act. No notice as required under the Act has been served upon the respondent no.1 and the application is also barred by the period of limitation. Respondent no.1 along with his co-workers including the deceased Raju was used to get Rs.60/- per day for the installation work. The deceased Raju ws inhabitant of Rajasthan and a place near to the native place of respondent no.1 and he brought him for the work in respect to premises owned by respondent no.2 and further under the employment of the respondent no.2.

3. Respondent no.2 in his reply has stated that the claim for compensation made against the respondent no.2 after more than 2 years from the date of death of the deceased Shri Raju I.e. 20-7-1996, is barred by the provisions of section 10(1) of the Act. The deceased had never been employed as Baledar by respondent no.2. Petitioners were not related to and/or dependent upon the deceased. He has further stated that he was not aware as to whether the deceased was in the employment of the respondent no.1 or was a sub-contractor of the respondent no.1. The construction of the residential building through contractors was not the trade or business of the respondent no.2. Respondent no.2 had not entered into any Deed of Settlement with the petitioners and it was his father, who had paid some amount to the petitioner no.1, purely out of sympathy and not because of any legal obligation, on account of death of the deceased.

4. On the pleadings of the parties the following issues were framed on 22-5-2000:

I.Whether the accident was caused out of and during the course of employment?

II. Whether there exists relationship of employer and employee between the deceased and respondent no.2?

III. Whether the respondent no.2 is employer of the deceased as defined under the Act?

IV.Relief, if any.

Thereafter on 20-9-2002 the following additional issues were framed:

V. Whether the claim against respondent no.2 is barred by limitation?

VI. Whether the claimants are entitled to receive any compensation from respondent no.2?"

5. It is contended by counsel for the appellant that the appellant herein who was the second respondent before the Commissioner Workmen's Compensation cannot be termed to be the principal in terms of Section 12 of the Workmen's Compensation Act. He submits that the appellant was not the person who in the course or for the purpose of his trade or business contracted with any other person to execute a work wholly or in part. He submits that the second respondent was the owner of the premises in which the first respondent was the contractor who was given the job of laying the stone and it was he who employed labour to complete the contract. He relies upon judgments in Shantabai Vs. Sahadeo and Ors., 1985 ACJ 845; Travancore Devaswom Board Vs. Purushothaman, 1989 ACJ 624; Madhanagopal alias Madhan Vs. Rasika Rajani Sabha, Rep. By its Secretary, Chennai and Anr., 2004 (2) T.A.C. 50 (Mad.)

6. To appreciate the contention of counsel it would be necessary to extract Section 12 of the Workmen's Compensation Act which reads as under:-

"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 reference to the wages of the workman under the employer by whom he is immediately employed."

7. A bare reading of the Section makes it abundantly clear that the appellant herein was not the person who can be taken as a principal since he was the owner of the house, who had engaged the contractor to perform a particular job which job was not part of any work which was ordinarily part of the trade or business of the petitioner. It is not as if it were a sub contract and, therefore, cannot be termed as a "principal".

8. In that view of the matter, I find that there is nothing on record to show that the appellant herein is covered under section 12 of the Act as a"Principal" and, therefore, I set aside the order dated 31.10.2003 of the Commissioner, Workmen's Compensation, insofar as it returns a finding that the appellant herein is a principal. FAO 26/2004 is allowed and disposed of accordingly.