Gujarat High Court
Paschim Gujarat Vij Co Ltd vs Malde Ukabhai Chudasma on 21 December, 2021
Bench: A.G.Uraizee
C/FA/3248/2019 ORDER DATED: 21/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3248 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 3248 of 2019
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PASCHIM GUJARAT VIJ CO LTD
Versus
MALDE UKABHAI CHUDASMA
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Appearance:
MR HEM DAVE FOR MR DIPAK R DAVE(1232) for the Appellant(s) No. 1,2
NOTICE SERVED(4) for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 21/12/2021
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 9.5.2018 passed
by the Commissioner for Workman Compensation Act and
Judge Labour Court, Junagadh in Workmen Compensation
Application (Fatal) No.3 of 2014.
2. Notice for final disposal is issued vide order dated
8.8.2019 in the appeal.
3. Facts giving rise the in the present appeal are not
many and lie in a narrow compass.
4. Respondent No.1 is a contractor of the appellants for
more than 7 to 8 years undertaking the work for and on
behalf of the appellant for maintainance of lines and
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installation of poles to be carried out by his employees
under his supervision. A work order dated 28.2.2013 was
given to the respondent No.1 by the appellant. It was the
respondent No.1, who engaged the deceased for more
than one year and allotted duties to him. It is thus, very
clear that there was a contractual relationship of master
and servant between the opponent No.1 and the deceased
and there was no existing contractual liability of any kind
between the appellant and the deceased employee. The
deceased Bhupatsinh, who was a son of the claimants
respondent No.2 and 3 met with a factual accident on
26.05.2013 during the course of his employment with
respondent No.1., parents of the deceased i.e. respondent
Nos.2 and 3 therefore, filed a Workman Compensation
Fatal Case No.3 of 2014 before the Commissioner for
Workman Compensation, Junagadh to claim Rs.5,00,000/-
as compensation from the appellants and respondent
No.1. Upon service of notice of the application, the
appellants and respondent No.1 entered their appearance
through their learned advocates. Respondent No.1
resisted the claim application by filing reply at Exhibit 22.
It was essentially contended that in the reply that the
deceased had met with an accident while during the work
for the appellants. The present appellants resisted the
application by filing reply Exhibit 17 wherein essentially
contended that the claimants are not entitled to receive
any compensation. It was also contended that there was
no relationship of employer and employee between the
appellants and the deceased. It was further contend that
the deceased was employed by respondent No.1 herein
and therefore, the present appellants were not liable to
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pay any compensation to the claimants. It was therefore,
urged that the application may be dismissed.
5. I have heard Mr.Dipak Dave, learned advocate for the
appellant. No appearance on behalf of the respondent,
though served.
6. Mr.Hem Dave, learned advocate appearing for
Mr.Dipak Dave, learned advocate vehemently submits that
there was no direct relation of employer and employee
between the appellants and respondent No.1. He further
submits that there was a contract between the appellant
and respondent No.1 for maintenance of the electricity
poles installed at the instance of respondent No.2. He
further submits that deceased was employee by
respondent No.1 for doing maintenance works of
electricity lines and poles. According to his submission, as
per contract entered into between respondent No.1 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. 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.1 had employed deceased 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
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payment of compensation on the appellant and
respondent No.1 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
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
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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
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 claimants from the appellant. In that
event, the appellant shall be at liberty to recovered the
same from the respondent No.1 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
