The Asst. Executive Engineer vs Smt. Kempamma
2022 Latest Caselaw 8273 Kant

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 07TH DAY OF JUNE, 2022

                        BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

MISCELLANEOUS FIRST APPEAL NO.8590/2016(WC)

BETWEEN:

1.      THE ASST. EXECUTIVE ENGINEER
        CESC SHIVALLY SUB-DIVISION,
        (KEB OFFICE), SHIVALLY,
        DUDDA HOBLI,
        MANDYA TALUK-571405.

2.      THE EXECUTIVE ENGINEER
        (KEB OFFICE) CESC,
        MANDYA- 571401.
                                   ... APPELLANTS
(BY SRI. HARI KRISHNA.S.HOLLA, ADVOCATE
APPEARING THROUGH V/C)
AND:

1.      SMT. KEMPAMMA
        W/O. LATE CHOWDANATHAPPA,
        R/O. HULIVANA VILLAGE,
        KERAGODU HOBLI,
        MANDYA TALUK AND DISTRICT-571446.

2.      MR. SIDDARAJU
        S/O. VEERANNA,
        CONTRACTOR,
        AGED ABOUT 37 YEARS,
        VEERABHADRESHWARA ELECTRICALS,
        4TH CROSS, V.V. NAGAR,
        KALLAHALLY, MANDYA-571401. ... RESPONDENTS
                                  2



(BY SRI. MARI GOWDA, ADV FOR R1,
 SRI. L.RAJA, ADV FOR R2)

     THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT AND AWARD DATED 01.07.2016 PASSED
IN ECA.NO.1/2014 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, MANDYA, AWARDING
COMPENSATION OF RS.5,19,950/-, AFTER GIVING
DEDUCTION OF RS.50,000/- ALREADY RECEIVED BY THE
PETITIONER, TUNE OF RS.4,69,950/-WITH INTEREST AT
6% PER ANNUM FROM THE DATE OF PETITION TILL THE
DATE OF REALIZATION.

     THIS MFA COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

This appeal is filed under Section-30(1) of

Workmen's Compensation Act, 1923, by the claimants

being aggrieved by the judgment and award dated

01.07.2016, passed by the Principal Senior Civil Judge and

Motor Accident Claims Tribunal, Mandya (hereinafter

referred to as 'Tribunal' for brevity) in ECA No.1/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that, respondent Nos.1 and 3 directed

deceased H.C.Shivu and one Girish to connect electricity

supply to a newly erected poles with the main poles stating

that electricity has been cut off to the main line, thereby

when the deceased climbed newly erected poles, the

electricity flowed into the wire, thereby both were

electrocuted and Shivu was shifted to hospital, declared

dead.

3. The dependants of the deceased filed a petition

under Section-10 of the Workmen's Compensation Act,

1923, seeking compensation for the death of the deceased

along with interest. On service of summons, respondent

Nos.1 to 3 therein, appeared and filed their statement of

objections.

4. The learned counsel for the appellants

submitted that the appellants are not liable to pay

compensation to respondent No.1, as per clause No.8, of

the agreement between the appellant and respondent

No.2, wherein it is stated that respondent No.2 shall be

solely responsible for any compensation payable to the

labourer employed by him, as per the relevant Acts And

Rules, in the event of any accident or for any other

reasons. Therefore, in the above said circumstances, the

appellants are not the employers of the deceased, but the

deceased was working under respondent No.2. Therefore,

respondent No.2 is liable to pay the

damages/compensation. Therefore, submitted that the

order passed by the Tribunal on the strength of the clause

No.8 of the agreement is not correct, because the

appellants are not liable to pay the compensation. But the

Tribunal has wrongly held that the appellants and

respondent no.2 are jointly severally liable to pay the

compensation. Further, submitted that the Tribunal ought

to have held that respondent No.2 alone is liable for

payment of compensation and making the appellant jointly

liable to pay the compensation is not correct.

5. The learned counsel for respondent No.1

submits that the deceased was working for and on behalf

of the appellants but through respondent No.2. Therefore,

the appellants are also employer and there is a relationship

of employer and employee exists between the appellants

and the deceased. Just because the deceased was working

through respondent no.2, it cannot be said that there is no

relationship between the employer and

employee/deceased. Further, submitted that since the

deceased was working for and on behalf of the appellants

and therefore if any loss or injury or damaged caused, the

appellants are also liable to pay the compensation which is

correctly held by the Tribunal.

6. Further, submitted that even if there is any

contract between the appellants and respondent No.2,

considering this the Tribunal has ordered for 'pay and

recovery' and under such the circumstance, there would be

no loss caused to the appellants, as the appellant can very

well recover from respondent No.2, in view of the

agreement executed between them. Therefore, in the said

circumstances, there is no merits involved in the appeal

and therefore prays for dismissal of the appeal.

7. It is not disputed that respondent no.2 is a

contractor under appellant Nos.1 and 2 and work of

contract was given for erecting electric poles. The

deceased was working as an employee under the

contractor - Respondent No.2 and was executing work, on

and behalf of the appellants. Therefore, considering the

nature of employment and entrustment of work, the

deceased was executing the work for and on behalf of the

appellants. Therefore, the relationship of employer and

employee existed between the appellants and deceased.

8. Though the deceased was hired by respondent

No.2, but the deceased was entrusted with the work for

and on behalf of the appellants, therefore, just because

the appellants and respondent No.2 have entered into an

agreement that does not mean that the appellants were

not at all responsible for the deceased and that he is not

an employee. Therefore, even though the deceased was

working under the employment of respondent No.2, by

virtue of contract / agreement between the appellants and

respondent No.2, he was entrusted with the work of the

appellant. Therefore, in this regard Section-12(2) of the

Employees Compensation Act is to be considered. Section-

12(2) of the Employees Compensation Act, stipules as

follows:

"12. Contracting-

(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 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.

9. Therefore, even if there is an agreement

between the appellants and respondent No.2, that

respondent No.2 shall indemnify any loss of life / damages

occurred but without affecting the rights of entitlements of

the deceased employee. This is very well considered by the

Tribunal in its judgment. Therefore, even if there is any

agreement between the appellants and respondent No.2, it

is an internal arrangement / agreement between the

appellants and respondent No.2 for which the deceased

was not a party and therefore if there is any clause in the

agreement, that should not affect the rights and

entitlement of the deceased / injured.

10. Furthermore, as per Sub-section-(2) of 12 of

the Employees Compensation Act, referred to supra states

that it is incumbent on the part of the Contractor to

indemnify any person standing to him in the relation of a

contractor from 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 the loss to the

appellants who are recognized to be as principle employer.

Therefore, the appellants shall get indemnification from

respondent No.2 and therefore in other words, the Tribunal

has followed the principle of 'pay and recovery'. The

appellants shall first pay the compensation and then

recover it from respondent No.2 - contractor by virtue of

agreement between them, which is produced as per

Exhibit-R3. Therefore, the appellants are very well

reserved liberty to get indemnification from respondent

No.2, as in other words following the principle of 'pay and

recovery'.

11. In this regard, I do not find any illegality or

perversity in the approach of the Tribunal. Where it is not

a disputed fact that the appellants have entrusted the

work of erection of electric pole by way of contract to the

respondent No.2 and the deceased was working for and

behalf of the appellants but through respondent No.2,

therefore, whenever a mishap occurs then the appellants

are also jointly and severally liable alongwith the

contractors. Therefore, this is rightly observed by the

Tribunal and accordingly ordered, which is perfectly

justified one. Just because there is an agreement the

appellants and respondent No.2 that cannot absolve the

liability of the appellants in payment of compensation. The

appellants were given every liberty to get indemnification

from respondent No.2- contractor.

12. In the present case, the appellants wanted him

to engage in erection of electric poles and therefore

entered into agreement with respondent No.2. Then the

deceased while executing the work of erection of electric

pole died. Therefore, where it is proved that the deceased

was working for and on behalf of the appellants then the

appellants are jointly and severally liable along with

respondent no.2 and the claimants are not affected by any

bilateral agreement between the appellants and

respondent No.2. As it is purely privity of contract between

them without affecting the liability of the deceased /

claimant, therefore, this is rightly considered by the

Tribunal and passed a well-reasoned and considered

judgment, which needs no interference by this Court.

13. The learned counsel for the appellants relied

on the judgment of this Court in the case of Karnataka

Power Transmission Corporation Limited And Others

Vs. The State Of Karnataka And Others, dated

05.07.2019, passed in Writ Appeals Nos.100404-

100521/2017 and connected matters. Upon perusal of

the said judgment, it is seen that the facts and

circumstances are different from the present case. In the

above referred case, the question involved was

regularization of contract employees. In that case, there

was a prayer for regularisaion of service of the contract

employees with the KPTCL. Therefore, the said judgment is

not applicable in the present case, as the factual matrix

and principle of law laid down therein is entirely different.

Therefore, the above judgment referred to supra is not

helpful to the appellants.

14. Therefore, for the aforesaid reasons, it is held

that the quantum of compensation awarded by the

Tribunal is justified. Furthermore, the appellants herein

have paid Rs.1,00,000/- (Rupees One Lakh Only) to the

respondent No.1 - claimant. Therefore, this conduct of the

appellant also proves the fact that it is incumbent upon the

appellants being empowered to indemnify the loss

occurred to any employee, even though they executed

contract, with the contractor - respondent No.2.

Therefore, the appellants are liable to pay compensation,

which is rightly considered by the Tribunal.

15. Under these circumstances, I do not find any

good ground to interfere with the judgment and award

passed by the Tribunal. Hence, the appeal being devoid of

merit is liable to be dismissed.

16. Accordingly, I pass the following:

ORDER

i. The appeal is dismissed.

ii. The impugned judgment and award dated

01.07.2016, passed by the Principal Senior Civil

Judge and Motor Accident Claims Tribunal, Mandya in

ECA No.1/2014, is hereby confirmed.

iii. The amount in deposit shall be transmitted to the

Tribunal along with a copy of this judgment and TCR

for enabling to release the amount in favour of the

respondents-claimants.

Sd/-

JUDGE

PK/JJ