Commandant, Army Base Workshop & ... vs Smt. Amrita Devi & Ors.
2014 Latest Caselaw 2376 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.460/2012

%                                                        9th May, 2014

COMMANDANT,
ARMY BASE WORKSHOP & ANR.                             ..... Appellant
   Through: Mr. R.V. Sinha, with Mr. R.N. Singh, Advocates

      Versus

SMT. AMRITA DEVI & ORS.                                ..... Respondent
     Through: Mr. D.D. Singh, with Mr. Navdeep Singh, Advocates for
              R-4.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    The first appeal is filed under Section 30 of the Employees'

Compensation Act, 1923 (in short "the Act") against the impugned judgment

dated 31.05.2012 which was allowed by the claim petition filed by the

respondents no.1 and 2 herein, and who are the dependants of the deceased

Mr. Vijay Kumar Giri, aged 28 years, Vijay Kumar Giri died on 14.03.2001

in an accident of fall from the roof where he was working.

2.    The Commissioner by the impugned judgment has held that in view of

the affidavit filed by the appellant through its Col. Raj Pal Singh, it is

FAO 460/2012                                                 Page 1 of 4
 admitted on record that the deceased Mr. Vijay Kumar Giri was working at

the building of the appellant at 505 Army Base Workshop Delhi Cantt on

14.03.2001 when he suffered injuries in an accident on account of fall from

the roof, and consequently died.

3.    Once all the aforesaid aspects are admitted facts, the Commissioner

has rightly applied the provision of Section 12 of the Act which however is

not specifically mentioned in the judgment. Section 12 of the Act reads 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 *[employee]
     employed in the execution of the work any compensation which
     he would have been liable to pay if that *[employee] 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 *[employee] 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 *[employee] 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
FAO 460/2012                                                   Page 2 of 4
      whom the *[employee] 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.

     (3) Nothing in this section shall be construed as preventing a
     *[employee] from recovering compensation from the contractor
     instead of the principal.

     (4) This section shall not apply in any case where the accident
     occurred elsewhere that on, in or about the premises on which the
     principal has undertaken or usually undertakes, as the case may
     be, to execute the work or which are otherwise under his control
     or management."
4.    A reading of the aforesaid Section 12 shows that the person at whose

place an employee of another employer is working, then the person at whose

place where the work is being carried out is the principal and such principal

becomes the deemed employer of the employee although the employee is

employed by the parent employer. The principal or the deemed employer

after paying compensation to the employee, is entitled to be indemnified by

the actual employer of the employee i.e. the principal can recover the

amount which is paid to the employee from the parent employer.

5.    In view of the aforesaid legal position and the affidavit of the

appellant itself filed through Col. Raj Pal Singh, before the Commissioner,

the counsel for the appellant confines the relief in this appeal to recover the

amount of the compensation from the parent employer who is respondent

no.1 before the Commissioner and respondent no.3 herein i.e appellant
FAO 460/2012                                                  Page 3 of 4
 claims indemnification so that the appellant can adjust any amount lying

with it of the respondent no.3 herein for the compensation which the

appellant has to pay to the respondent nos.1 and 2 as per the impugned

judgment.

6.    Since as per sub Section 2 of Section 12, appellant is entitled to be

indemnified including by adjusting with it any amounts of the respondent

no.3 which is lying with the appellant, or if there are no moneys of the

respondent no.3 with the appellant, then, the appellant can always recover

the amount which is/was paid under the impugned judgment from the

respondent no.3 and hence I accordingly give such entitlement to the

appellant.

7.    The appeal is disposed of in terms of the aforesaid observations,

leaving the parties to bear their own costs.




MAY 09, 2014                                   VALMIKI J. MEHTA, J.

ss