Delhi High Court
Kalindi College vs Gopal Singh & Anr. on 1 August, 2016
$~23, 24 & 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: August 01, 2016
(i) + FAO 188/2015
KALINDI COLLEGE ..... Appellant
Through: Mr. R.P. Sharma and Mr. Vaibhav
Mehra, Advocates
versus
KISHORE KUMAR & ORS .....Respondents
Through: Mr. R.K. Nain and Ms. Pratima N.
Chauhan, Advocates for
respondent No.1
Mr. Jaideep Malik, Advocate for
respondent No.2
(ii) + FAO 243/2015
KALINDI COLLEGE ..... Appellant
Through: Mr. R.P. Sharma and Mr. Vaibhav
Mehra, Advocates
versus
GOPAL SINGH & ANR .....Respondents
Through: Mr. R.K. Nain and Ms. Pratima N.
Chauhan, Advocates for
respondent No.1
Mr. Jaideep Malik, Advocate for
respondent No.3
FAOs 188/15, 243/15 & 105/16 Page 1 of 6
(iii) + FAO 105/2016 & C.Ms.No. 8405-8406/2016
M/S. GLOBAL ENGINEERING ..... Appellant
Through: Mr. Jaideep Malik, Advocate
versus
KISHORE KUMAR & ANR. .....Respondents
Through: Mr. R.K. Nain, and Ms. Pratima N.
Chauhan, Advocates for
respondent No.1
Mr. R.P. Sharma, and Mr. Vaibhav
Mehra, Advocates for respondent
No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
C.M.No. 14009/2015 in FAO 243/2015 (Delay)
There is 127 days' delay in re-filing the accompanying appeal.
For the reasons stated in the application, it is allowed and the delay
is condoned subject to cost of `500/- to be deposited with the Delhi High
Court Staff Welfare Fund.
Application stands disposed of.
C.M.No. 14006/2015 in FAO 243/2015 (Delay)
There is 43 days' delay in filing the accompanying appeal.
The reason put forth for the delay is that the appellant had
exhausted the remedy of review, which resulted in the delay.
Sufficient cause is shown. The application is allowed and the delay
is condoned.
Application stands disposed of.
FAO 188/2015 & C.M.No. 10745/2015
FAO 243/2015 & C.M.No. 14008/2015
FAO 105/2016 & C.Ms.No. 8405-8406/2016
The above captioned three appeals relate to an unfortunate incident
of 6th July, 2010 in which a labourer-Suresh had died and another
labourer-Kishore Kumar had sustained grievous injuries due to sudden
fall of the lift in the Kalindi College where the construction work was
going on in pursuance to an Agreement of 5th March, 2010 between
appellants-Kalindi College and M/s. Global Engineering. An FIR relating
to this incident was registered, though claim petitions were filed on behalf
of the deceased-Suresh and by injured-Kishore Kumar after a delay of
two years. The appellants-Kalindi College and M/s.Global Engineering
knew about this unfortunate incident and they were under legal obligation
to report it to the Commissioner under the Workmen's Compensation Act,
1923 in terms of Section 10-B of the aforesaid Act. Such a course was not
adopted. A claim petition was filed by the legal heirs of the deceased and
by injured-Kishore Kumar in June, 2014 which was allowed, in the case
of deceased vide order of 4th September, 2014 and in the case of injured-
Kishore Kumar vide order of 24th October, 2014.
In the above captioned first appeal i.e. FAO 188/2015, the
appellant-Kalindi College challenges the grant of compensation of
`3,33,312/- with interest to injured-Kishore Kumar. In the above
captioned second appeal i.e. FAO 243/2015, the challenge is to the grant
of compensation of `8,90,840/- with interest in case of death of Suresh in
this accident. In the above captioned third appeal i.e. FAO 105/2016, the
challenge is by the Contractor to the grant of compensation to injured-
Kishore Kumar.
With the consent of learned counsel for the parties, the above
captioned three appeals were heard together and are being disposed of by
this common judgment.
Learned counsel for appellant-Kalindi College submits that as per
Clause 21 of Contract of 5th March, 2010 (Annexure A-1), the Contractor
is a principal employer and, so he is liable to pay the compensation
awarded. This is refuted by learned counsel for appellant-Contractor-M/s.
Global Engineering, who draws the attention of this Court to Clause 18A
of the aforesaid Contract which stipulates that under the Workmen's
Compensation Act, 1923, the University/College is obliged to pay the
compensation to the workmen employed by the Institution in execution of
the construction work.
Learned counsel for appellant-Kalindi College draws the attention
of this Court to Sub-section 2 of Section 12 of the Workmen's
Compensation Act, 1923, which reads as under: -
"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."
It is also pointed out that Clause 18A of the aforesaid Contract
(Annexure A-1) gives unqualified right to the College to recover the
deposited amount of compensation from the Contractor.
After having heard learned counsel for the parties at length and on
perusal of the impugned orders, the Contract in question and the material
on record, this Court finds that in view of Clause 18A of the Contract
(Annexure A-1), it is the responsibility of the principal employer to pay
the compensation with a rider that it can recover compensation paid from
the Contractor. This is otherwise also the mandate of Sub-section 2 of
Section 12 of The Workmen's Compensation Act, 1923.
In the light of the aforesaid, these appeals are disposed of with
direction that the awarded compensation so deposited by appellant-
Kalindi College be released to the respondents-claimants. Since
appellant-Kalindi College has a right to recover the awarded amount from
the Contractor, therefore, in the facts and circumstances of this case, it is
made clear that by virtue of this judgment, appellant-Kalindi College has
the absolute right to recover the amount of awarded compensation from
the Contractor i.e.M/s. Global Engineering. If this judgment is not
complied with, then appellant-Kalindi College shall get this judgement
implemented by filing execution petition before the Commissioner under
the Workmen's Compensation Act, 1923. Since it is the case of appellant-
M/s. Global Engineering that the lift/machine, which had fallen down,
was brought from one Sohan Lal, therefore, it would be open to M/s.
Global Engineering to proceed against the said Sohan Lal to recover the
compensation amount after it is paid by appellant-M/s. Global
Engineering.
In the event of appellant-M/s. Global Engineering failing to deposit
the awarded compensation amount in respect of the injury case as well as
the death case, with the Commissioner under the Employee's
Compensation Act, 1923 within a period of 12 weeks from today, then
appellant-Kalindi College shall be at liberty to get this judgment
complied with.
The amount deposited by the appellant-Kalindi College with the
Registry of this Court with interest accrued thereon be remitted to the
Commissioner under the Employee's Compensation Act, 1923 for
disbursement to the respondents-claimants. Trial court records be sent
back forthwith.
With aforesaid directions, the above captioned three appeals and
the pending applications are disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 01, 2016
radhika/s
