Delhi High Court
Subrato Chaudhary vs Dinesh Kumar (Since Decd. ... on 16 April, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 108/2014
% 16th April, 2014
SUBRATO CHAUDHARY ......Appellant
Through: Mr. Soumitra Chatterjee and Ms.
Sriparna Chatterjee, Advocates.
VERSUS
DINESH KUMAR (SINCE DECD. REPRESENTED BY HIS WIFE
HIRAMATI) AND ANR. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 6546/2014(delay in filing)
For the reasons stated in the application, delay in filing is condoned
subject to just exceptions.
FAO 108/2014& CM Nos. 6544/2014 (stay)
1. This first appeal is filed under Section 30 of the Employee's
Compensation Act, 1923 impugning the judgment of the Commissioner
dated 31.10.2013, by which the Commissioner has allowed the claim
petition filed by the respondent no.1 herein. Respondent no.1 is the widow
FAO 108/2014 Page 1 of 5
of late Sh. Dinesh Kumar, and who died in an accident at the time of doing
repairs/construction in the building which was owned by the appellant
(respondent no.2 before the Commissioner).
2. The facts of the case are that the Sh. Dinesh Kumar was employed as
a mason (Raj Mistri) by respondent no.2 herein/contractor (respondent no.1
before the Commissioner). The contractor-respondent no.2 was appointed
by the appellant herein for making repairs/construction to the building of the
appellant situated at A-5B/150, Shanti Kunj Apartment, Paschim Vihar,
Delhi. On 9.5.2011 at about 4.00 PM when the deceased Dinesh Kumar was
working on the building, the scaffolding on which the deceased Dinesh
Kumar was working collapsed /broke, and Dinesh Kumar fell down from the
third floor. Sh. Dinesh Kumar consequently suffered grievous injuries. An
FIR was registered with the police station being FIR No. 198/2011 on
1.7.2011. Though Dinesh Kumar was discharged from the hospital on
6.6.2011, however, ultimately Dinesh Kumar died as a result of injuries
suffered on account of the accident.
3. The Commissioner has allowed the claim petition by making the
following observations:-
"8. The case of the appellants is that the deceased Shri Dinesh
Kumar was working as a mason with Respondent No.1 and his
services were let on hire for the work to be conducted on the
FAO 108/2014 Page 2 of 5
property of Respondent No.2 and while working he fell down
due to which he sustained injury. The said injury proved fatal
and he died. The fact of injury and consequential death is not
hotly contended by the parties. Respondent No.1 has denied
any relationship. Respondent No.2 has said that it was
Respondent No.1 who had engaged the deceased for conduction
the repair on the property owner Respondent No.1. The
relationship of employer and employee if any was between the
deceased and Respondent No.1. the said Respondent i.e.
Respondent No.2 has further stated that he arranged Rs.5,000/-
and the said was handed over to Respondent No.1 on
humanitarian ground. Respondent No.1 in his cross
examination has admitted the fact of injury. He had stated that
he came to know about the injury and he facilitated the injured
to the hospital. But it was out of sheet sympathy and not any
employment obligation. In the given premises nothing
remained to be proved that the injury had been caused to the
deceased at the stated place while working on the property of
Respondent No.2. Even otherwise it is an admitted fact by
Respondent No.2. Respondent No.2 has not filed any document
to show that there was any contract between him and
Respondent No.1. Certainly there is nothing is on record and
also in the evidence to show the contract whatsoever. No
witness was brought in this regard by Respondent No.2. This
obligation which was solely on Respondent No. 2 has not been
discharged by him by bringing any sort of evidence. Hence the
liability could not be bridged from Respondent No. 2 to
Respondent No. 1. Even otherwise as per section 12 of the
Employee's Compensation Act, 1923 this option is available
with the claimants. In view of above discussion, facts and
circumstances that employee-employer relationship existed
between the deceased employee and the Respondents and
accordingly further, I hold in view of above that the injury to
the deceased was caused out of and during the caused of
employment with Respondent No. 2. As such, Issue No. I & II
are decided in favour of the claimant and against Respondent
No.2.
Next question as to what amount of compensation the applicant
is entitled to. In the claim application, it has been stated that the
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deceased was drawing wages at the rate of Rs. 9000/- per month
@Rs. 300/- per day. Respondent No. 1 did not accept the
factum of employment hence they were not to tell any amount
of wages and accordingly same tract was taken by Respondent
No.2. In the given situation we have to fall back on the
minimum rates of wages prevalent in Delhi at that point of
time. The minimum rates of wages for un-skilled working at the
time were Rs. 6422/- Per month. Hence his wages are
accordingly @ Rs. 6422/- per month. In the claim application
the age of the applicant is shown 40 and the medical documents
his age is shown 42 years and the election identity card shows
the age in the year 2010 to be 40 years meaning thereby the
deceased was aged 42 years at the time of occurrence of
accident. His age is taken 42 years. And the relevant factor is
178.49. In view of above made discussion, the Appellant is
entitled to get death compensation from Respondents jointly or
severally.
In the given wages, age the applicant is entitled to death
compensation as under:-
178.49 x 3211 = Rs. 5,73,131/-
RELIEF
9. As such, in view of above Appellant is entitled to get Rs.
5,73,131/- as death compensation from Respondents along with
simple interest @ 12% per annum as Respondent has not
discharged his responsibility under section 4A(1) of the
Employee's Compensation Act, 1923. Therefore, Respondent
No. 2 being the principal employer is liable to indemnify to the
Appellant as per section 12 of the Employee's Compensation
Act, 1923 with liberty to recover the awarded amount from
Respondent No. 1 i.e. Shri Krishna Gupta son of Shri Gunni
Lal, Contractor, Resident of B-254, Balbir Vihar, Near Sonia
Public School, Kirari, Suleman Nagar, Delhi - 110086.
4. A reading of the aforesaid paras show that the Commissioner has applied
Section 12 of the Act and as per which provision an owner of a building who
FAO 108/2014 Page 4 of 5
appoints a contractor is made liable for any injuries caused in an accident to an
employee of the contractor, of course with the simultaneous right to the
employer to seek indemnification from the contractor. In the present case,
since the appellant was the owner of the building, he would be a principal as
per Section 12 of the Act, and the contractor who was appointed by the
appellant i.e respondent no.2 herein, would be liable to indemnify the appellant
once the appellant pays the amount to the respondent no.1 in terms of the
impugned judgment. I do not agree with the counsel for the appellant that the
appellant is not liable as per Section 12 of the Act.
5. An appeal under Section 30 of the Act lies only if there is a substantial
question of law. In my opinion, provision of Section 12 of the Act squarely
applies and therefore no substantial question of law arises in the present appeal.
6. In view of the above, there is no merit in the appeal, and the same is
therefore dismissed, leaving the parties to bear their own costs.
APRIL 16, 2014 VALMIKI J. MEHTA, J.
ib
