Gujarat High Court
Gujarat Electricity Board Now, ... vs Sureshbhai Maganbhai Vankar on 6 December, 2021
Bench: A.G.Uraizee
C/FA/3444/2019 ORDER DATED: 06/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3444 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/FIRST APPEAL NO. 3444 of 2019
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GUJARAT ELECTRICITY BOARD NOW, CONVERTED AS UTTAR
GUJARAT VIJ COMPANY LIMITED
Versus
SURESHBHAI MAGANBHAI VANKAR
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Appearance:
MR SD MOTWANI Adv for MR DIPAK R DAVE(1232) for the Appellant(s) No. 1
MR PRATIK KHUBCHANDANI, Adv for MR DA SANKHESARA(5955) for the
Defendant(s) No. 1
NOTICE SERVED(4) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 06/12/2021
ORAL ORDER
1. This appeal is preferred under Section 30 of the
Workmen's Compensation Act, 1923 (for short "the WC
Act") to assail judgment and order dated 27.4.2018
passed by the Commissioner Workman Compensation,
Labour Court, Himmatnagar in Workman Compensation
(Non Fatal) Application No.1 of 2016.
2. Facts giving rise the in the present appeal are not
many and lie in a narrow compass.
3. Respondent No.1-workman was working as electricity
helper with respondent No.2 on 27.10.2015 and at about
1:00 when he was working on a electricity pole, all of
sudden, he fell down from the electricity pole and suffered
serious injuries on various parts of the body. He was
admitted to Civil Hospital, Ahmedabad as an indoor
patient and for which, he had incurred huge expenses.
Though notice through advocate was served on
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respondent No.2, no compensation was paid to
respondent No.1. Hence, he filed claim application for
compensation in the Court of commissioner for Workman.
Respondent No.2. Though served, did not enter
appearance to contest the claim application before the
Commissioner. The appellant entered its appearance and
contest its claim application by filing reply Exhibit 8. It was
mainly contended in the reply that there was a contract
between the appellant and respondent No.2 Gram
Panchayat for maintenance of the electricity poles. It was
further contended that respondent No.2, who had hired
the respondent No.1 on contract basis for various work
relating to electricity poles. It was further urged that the
appellant was not liable to pay any compensation to
respondent No.1.
4. Heard Mr.SD Motwani, learned advocate appearing
for Mr.DR Dave, learned advocate for the appellant and
Mr.Pratik Khubchandani, learned advocate appearing for
Mr.DA Sankhesara, learned advocate for respondent No.1.
5. Mr.Motwani, learned advocate vehemently submits
that there was no direct relation of employer and
employee between the appellant and respondent No.1. He
further submits that there was a contract between the
appellant and respondent No.2 for maintenance of the
electricity poles installed at the instance of respondent
No.2. He further submits that respondent no.1 was
employee by respondent No.2 for doing maintenance
works of electricity poles. According to his submission, as
per contract entered into between respondent No.2 and
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appellant, it was the liability of respondent No.2 to pay the
compensation to the workman in the WC Act. He,
therefore, submits that the appeal may be allowed.
6. Mr.Khubchandani, learned advocate submits that
respondent No.2 could not dispute the fact that
respondent No.1 was employed by respondent No.2 for
maintenance of electricity poles installed by appellant. He
could also not dispute the contract between the appellant
and respondent No.2.
7. I have given my thoughtful consideration to the rival
submissions. It is an undisputed fact that there was a
contract between the appellant and respondent No.2 for
the maintenance of electricity poles. As per the contract
the respondent No.2 had employed respondent No.1 as
electricity helper and while doing the work during the
course of his employment, he had suffered injuries in the
accident. The moot question, therefore, is whether the
Commissioner has committed an error in fastening the
liability of payment of compensation on the appellant and
respondent No.2 jointly and severally without reserving
liability in favour of the appellant to recover the
compensation in the event it is recovered by respondent
No.1 from it.
8. Section 12 (1)(2) of the WC Act reads as under:
(1) here 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
C/FA/3444/2019 ORDER DATED: 06/12/2021
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.
9. It is thus, eminently clear from the bare reading of
the provisions of Section 12(1) of the WC Act that the
appellant being principal is liable to pay compensation to
respondent No.1-workman. However, it appears from the
provision of Section 12(2) of the WC Act that when the
appellant is held liable to pay the compensation to the
workman, he can recover the same from the contractor.
10. In view of the above, provisions of Section 12 (1)(2)
of the WC Act, I am of the considered view that
commissioner has not committed any error in directing the
appellant to pay compensation to respondent No.1 jointly
and severally with respondent No.2.
11. However, at the same time, in view of provisions
under Section 12 (2) of the WC Act, the Commissioner
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ought to have reserved liberty in favour of the appellant to
recover the compensation paid by him to respondent No.1
from the respondent No.2 contractor and to that extent
the impugned order of the Commissioner needs to be
modified.
12. In view of the above, the order of Commissioner is
modified to the extent that if the amount of compensation
is recovered by respondent No.1 from the appellant. In
that event, the appellant shall be at liberty to recovered
the same from the respondent No.2 in accordance with
law. Therefore, the appeal accordingly stands disposed of.
13. Since the main matter is disposed of, the Civil
Application does not survive. Hence, the same is disposed
of accordingly.
(A.G.URAIZEE, J)
ALI
