Karnataka High Court
The Chief Secretary,Zilla ... vs Smt.Bandewwa W/O.Basalingappa ... on 28 June, 2022
Bench: P.Krishna Bhat
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MFA No. 24096 of 2010
C/W MFA No. 24095 of 2010
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO. 24096 OF 2010 (WC-)
C/W
MISCELLANEOUS FIRST APPEAL NO. 24095 OF 2010
IN MFA NO.24096/2010
BETWEEN:
THE CHIEF SECRETARY,
ZILLA PANCHAY, BELGAUM,
...APPELLANT
(BY SRI ANAND ASHTEKAR, ADVOCATE)
AND:
1. SHRI. SADEPPA KAREPPA HARIJAN
AGE: 78 YEARS, OCC:AGRICULTURE,
R/O: MEKALAMARDI,
TAL: BAILHONGAL,DIST: BELGAUM.
Digitally signed
by SUJATA
SUBHASH
PAMMAR
Location: HIGH 2. SMT.KAREWWA W/O. SADEPPA HARIJAN
COURT OF
KARNATAKA,
DHARWAD SINCE DECEASED R1 AND R3 ARE
TREATED AS LRS (VIDE COURT ORDER DATED
09.08.2018)
3. KUMARI YALLAVVA D/O. NAGAPPA HARIJAN
AGE: 18 YEARS, OCC: NIL,
R/O: MEKALAMARDI,
TAL: BAILHONGAL, DIST: BELGAUM.
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MFA No. 24096 of 2010
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4. THE PRESIDENT,
GRAM PANCHAYAT, HALASI,
TAL: KHANAPUR, DIST: BELGAUM.
5. RENUKA CONSTRUCTIONS CO.
GOKAK, PROPRIETOR, SHRI.S.G. SHIGGAVI,
LIG 83, ASHOK NAGAR, BELGAUM.
6. THE SECRETARY,
GRAM PANCHAYAT, HALASI,
TAL: KHANAPUR, DIST: BELGAUM.
7. THE SECRETARY
RURAL DEVELOPMENT AND
PANCHAYAT RAJ, M.S.BUILDING,
BANGALORE-1.
...RESPONDENTS
(BY SRI M. C. HUKKERI, ADVOCATE FOR R3,
R1 & R3 ARE TREATED AS LRS OF DECEASED R2,
R4 & R6 ARE HELD SUFFICIENT,
SRI VITTHAL S. TELI, ADVOCATE FOR R5,
SRI PRASHANT MOGALI, HCGP FOR R7)
THIS MFA IS FILED U/SEC.30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT AND AWARD PASSED BY THE LEARNED
COMMISSIONER FOR WORKMEN'S COMPENSATION AND
LABOUR OFFICER, SUB-DIVISION-II, BELGAUM AT:BELGAUM
IN WCA:KaPaKa:SR:44/2007 DATED 25.02.2010, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.24095/2010
BETWEEN:
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MFA No. 24096 of 2010
C/W MFA No. 24095 of 2010
THE CHIEF SECRETARY,
ZILLA PANCHAYAT, BELGAUM.
...APPELLANT
(BY SRI. ANAND ASHTEKAR, ADVOCATE)
AND:
1. SMT. BANDEWWA
W/O BASALINGAPPA TARAGAR,
AGE:65 YEARS,
OCC: HOUSE HOLD WORK,
R/O: MEKALAMARDI,
TAL: BAILHONGAL,
DIST: BELGAUM.
2. SMT.CHAMPAWWA
W/O IRAPPA TARAGAR
AGE:40 YEARS,
OCC: HOUSE HOLD WORK,
R/O: MEKALAMARDI,
TAL: BAILHONGAL, DIST: BELGAUM.
3. SMT. GANGAWWA
W/O IRAPPA TARAGAR,
AGE:35 YEARS,
OCC: HOUSE HOLD WORK,
R/O: MEKALAMARDI,
TAL: BAILHONGAL, DIST: BELGAUM.
4. MR. SAGAR S/O IRAPPA TARAGAR,
AGE: 18 YEARS, OCC: NIL,
R/O: MEKALAMARDI,
TAL: BAILHONGAL, DIST: BELGAUM.
5. THE PRESIDENT,
GRAM PANCHAYAT, HALASI,
TAL: KHANAPUR, DIST: BELGAUM.
6. RENUKA CONSTRUCTIONS
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MFA No. 24096 of 2010
C/W MFA No. 24095 of 2010
CO. GOKAK, PROPRIETOR,
SHRI. S.G. SHIGGAVI, LIG 83,
ASHOK NAGAR, BELGAUM.
7. THE SECRETARY,
GRAM PANCHAYAT, HALASI,
TAL: KHANAPUR, DIST: BELGAUM.
8. THE SECRETARY,
RURAL DEVELOPMENT
AND PANCHAYAT RAJ,
M. S. BUILDING,
BANGALORE - 01.
...RESPONDENTS
(BY SRI M. C. HUKKERI, ADVOCATE FOR R2 TO R4,
R5 & R7 ARE SERVED,
SRI VITTHAL S. TELI, ADVOCATE FOR R6,
SRI PRASHANT MOGALI, HCGP FOR R8
APPEAL AGAINST R1 ABATED)
THIS MFA IS FILED U/SEC.30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923, PRAYING THIS COURT TO SET-
ASIDE THE JUDGMENT PASSED BY THE HON'BLE
COMMISSIONER FOR WORKMEN'S COMPENSATION AND
LABOUR OFFICER, SUB.DIVN.II, BELGAUM AT:BELGAUM IN
WCA;KaPaKa:SR: 43/2007 DATED 25.02.2010, SO FAR IT
RELATES TO FASTENING THE LIABILITY ON THE APPELLANT,
WHICH OUGHT TO HAVE BEEN SADDLED ON RESPONDENT
NO.6, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, COURT DELIVERED THE FOLLOWING:
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JUDGMENT
These appeals are at the instance of the Zilla
Panchayat, Belgaum calling in question the legality of
award dated 25.02.2010 in KaPaKa:SR:43/2007 and in
KaPaKa:SR:44/2007 passed by learned Commissioner for
Workmen's Compensation and Labour Officer, Sub-
Division-II, Belagavi (for short "the Commissioner").
2. Brief facts insofar as the same are relevant for
deciding the present appeals are that two persons namely
Irappa Taragar and Nagappa Harijan were working as
labourers under the Contractor who was executing the
project for the appellant and on 15.04.2005 at about 8.15
p.m. on account of explosion of some gelatin sticks stored
in the shed, Irappa Taragar and Nagappa Harijan died in
the spot itself. It is stated that the project under which the
said two persons along with several others were working
was for implementing Jal Nirmala Yojana.
MFA No. 24096 of 2010
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3. On claim petitions being filed, the appellant who
was respondent No.4 before the learned Commissioner
entered appearance through learned counsel and also filed
statement of objections and thereafter took no further part
in the proceedings.
4. During trial, the claimants examined
themselves as PW.1 and PW.2 and another witness who
was a Co-worker with the deceased. Ex.P.1 to P.9 were
marked. Respondents examined one witness and Ex.R.1
and R.2 were marked.
5. After hearing the learned counsel on both sides
and perusing the material on record, the learned
Commissioner allowed both claim petitions in part by
awarding compensation of Rs.3,79,120/- for the death of
Irappa Taragar and Rs.3,19,600/- for the death of the
Nagappa Harijan with interest thereon at the rate of 12%
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per annum with effect from 30 days from the date of the
accident.
6. Learned counsel Sri Anand Ashtekar appearing
for the appellants has advanced sole contention to the
effect that learned Commissioner has committed a legal
error in not passing a direction enabling the appellant to
effect recovery of the compensation from respondent
No.5-Renuka Constructions Co. Gokak, who was the
contractor under whom the two deceased persons were
working in the project. He took me through the provisions
of Section 12 of the Employees' Compensation Act, 1923
(for short "the Act") in order to substantiate his
contention. He accordingly, submitted that the matter is
required to be remanded to the learned Commissioner to
enquire into the matter by examining the project
agreement between appellant and respondent No.5-
Contractor and pass suitable orders in that behalf.
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C/W MFA No. 24095 of 2010
7. I have heard learned counsel Sri M.C. Hukkeri
for respondents 1 and 3 and Sri. Vittal S Teli for
respondent No.5-Contractor, who have supported the
award passed by the learned Commissioner.
8. There is no dispute about the basic facts that
deceased were working as employees under the contractor
in execution of the Jala Nirmala project for the benefit of
the appellant herein and on account of explosion of some
gelatin sticks preserved in the shed in the project site on
15.04.2005 at about 8.15 pm two persons, whose
dependants are the claimants, had died instantaneously.
9. The contention advanced before me in this
appeal is that the deceased had died while being at the
worksite of the Jala Nirmala project in which they were
working for the benefit the appellant and the deceased
workmen were directly employed by respondent No.5-
contractor and therefore in terms of Section 12 of the Act,
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the appellant has a right to recover the compensation
awarded from the contractor-respondent No.5 on
establishing that there is such a provision in the project
agreement between the appellant and respondent No.5.
For a better understanding of legal position, an immediate
reference to Section 12 of the Act may be made and it
reads as follows;
"12. Contracting.- (1) Where 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 [employee] employed in the execution of the
work any compensation which he would have been
liable to pay if that [employee] 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
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that the amount of compensation shall be calculated
with reference to the wages of the [employee] 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 [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 question as to the right to and the amount of any
such indemnity shall, in default of agreement, be
settled by the Commissioner.
(3) Nothing in this section shall be construed
as preventing [an employee] from recovering
compensation from the contractor instead of the
principal.
(4) This section shall not apply in any case
where the accident occurred elsewhere than on, in or
about the premises on which the principal ha
undertaken, or usually undertakes, as the case may
be, to execute the work or which are otherwise under
his control or management."
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10. The above provision defines the persons who
are treated as employers for the purpose of fastening
liability to pay the compensation. For instance, in this
case, the accident occurred while the project was being
executed for the Jala Nirmala Yojana, which is a project for
the benefit of the appellant herein. However, the appellant
was not executing the project by employing workmen
directly. It is the say of the appellant that it had entered
into an agreement for the execution of work with
respondent No.5 whose primary task was to execute the
project by hiring necessary workmen as well as
commanding necessary machineries. The provisions of
Section 12 of the Act noted hereinabove clearly pre-
supposes execution of the works either directly by the
beneficiary or through the agency of a contractor and in
both the events, the employees who suffered injuries in
employment related accidents are entitled to proceed
against the beneficiary of the project or against the
contractor commissioned by the beneficiary (Principal),
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who has directly employed such workmen. Sub Section 2
of Section 12 of the Act is explicit in saying that once
existence of such an agreement for execution of the
project through a contractor is proved, the principal who
has paid compensation arising from claims pertaining to
employment related accident has the right to be
indemnified from a contractor who has employed such
workmen. Such claims for indemnification as between the
principal and contractor should be adjudicated by the
Employee's Compensation Commissioner.
11. In these appeals, the learned counsel
apologetically submits that the appellant did not care to
participate in the proceedings after filing the statement of
objections and therefore appellant could not press for such
adjudication before the commissioner. There is no doubt
that if the authorities like the appellants remain so
indifferent, they do so at their peril. However taking note
of the fact that appellant is a public institution and the
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interest of public will suffer unless an opportunity is
provided to make a claim seeking indemnification on the
strength of the agreement before the learned
Commissioner and therefore in recognition of the public
interest, appropriate direction is required to be issued to
the Employees' Compensation Commissioner while
maintaining compensation awarded and primary liability to
pay the same by the appellant to the claimants.
12. Accordingly, the above appeals are disposed of
with liberty to the appellant to produce the agreement
between itself and respondent No.5 (Renuka Constructions
Co. Gokak) before the learned Commissioner seeking
adjudication of the rights of the appellant to claim
indemnification from the respondent No.5 in regard to the
compensation paid by the appellant to the claimants. In
the event of such adjudication being sought by the
appellant, the learned Commissioner or learned Senior
Civil Judge, to whom the jurisdiction is now entrusted,
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shall decide the same within six months from the date of
such claim being made.
13. Amount in deposit before this Court shall be
transmitted to the Court of learned jurisdictional Senior
Civil Judge along with the records forthwith.
14. In view of disposal of the appeals, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.
Sd/-
JUDGE
SSP
