Dakshin Gujarat Vij Company ... vs Natvarbhai Valjibhai Baria
2021 Latest Caselaw 18376 Guj

     C/FA/5027/2018                                ORDER DATED: 14/12/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 5027 of 2018

                                  With
                      R/FIRST APPEAL NO. 481 of 2019
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                 DAKSHIN GUJARAT VIJ COMPANY LIMITED
                               Versus
                 NATVARBHAI VALJIBHAI BARIA & 1 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1
MR P C CHAUDHARI(5770) for the Defendant(s) No. 1
MS RATNA VORA(2251) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                              Date : 14/12/2021
                               ORAL ORDER

1. These appeals are preferred under Section 30 of the Workmen's Compensation Act, 1923 (for short "the WC Act") to assail judgment and order dated 5.5.2017 passed by the Commissioner Workman Compensation, Labour Court, Dahod in Workman Compensation (Non Fatal) Application No.11 of 2011.

2. Facts giving rise the in the present appeals are not many and lie in a narrow compass.

3. Respondent No.1 was working with respondent No.2, who had taken contract (work order) from the appellant herein. It is the case of the respondent No.1 that on 16.9.2009, when he was working as a labour, he suffered electrocution while doing wire fitting work and accordingly, suffered injuries on a right hand and burn injuries all over the body. As per respondent No.1,

C/FA/5027/2018 ORDER DATED: 14/12/2021

because of the accident palm of right hand has been disabled and there is 100% disability. Respondent No.1 was immediately admitted in Jayul Surgical Hospital, Surat as an indoor patient. He, thereafter, filed WC (Non Fatal) Application No.11 of 2011 in the Labour Court, Dahod to recover Rs.4,88,045.50 with interest and 50% penalty against the present appellant and respondent No.2.

4. Respondent No.2 though served, did not entered appearance to contest the claim application before the Labour Court. The appellant entered its appearance and contested the claim application by filing reply at Exhibit

61. It was mainly contended by the appellant in its reply that there was no relationship of employer and workman between appellant and respondent No.1. It was also contended that respondent No.1 was employed by respondent No.2 for wire fitting and maintenance of electricity pole. Hence, it was submitted that the appellant was not liable to pay compensation.

5. Mr.DR Dave, learned advocate for the appellants, Mr.PC Chaudhari, learned advocate for respondent No.1 and Ms.Ratna Vora, learned advocate for respondent No.2.

6. Mr.Dave, 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

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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 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.

7. Mr.Chaudhari, 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.

8. 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.

9. Section 12 (1)(2) of the WC Act reads as under:

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(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 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.

10. 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.

11. 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

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appellant to pay compensation to respondent No.1 jointly and severally with respondent No.2.

12. However, at the same time, in view of provisions under Section 12 (2) of the WC Act, the Commissioner 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.

13. 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 appealS accordingly stand disposed of.

(A.G.URAIZEE, J) ALI