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Judgment
Nyapathy Vijay, J
The present Civil Miscellaneous Appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 questioning the Order dated 30.04.2008 in W.C.No.18 of 2006 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Circle-2, Visakhapatnam, Visakhapatnam District in awarding compensation of Rs.3,13,089/- to the Claimants.
The facts leading to filing of the present appeal are as follows:-
The deceased Bangaru Appalanaidu was a skilled technician working under O.P.No.1 (Contractor). O.P.No.2 had engaged the services of O.P.No.1 for maintenance of electrical lines. O.P.No.1 was paying monthly wage of Rs.3,000/- per month to the deceased. On 10.12.2004, the deceased while working on electrical pole of O.P.No.2 at Chowdari Polem, Kanchugummali Village, and at that time the electric pole broke down and the deceased fell on ground and suffered grievous injuries. Immediately, the deceased was shifted to Narsipatnam Hospital, where he had succumbed to his injuries on the same day. As the deceased was aged about 40 years and was earning Rs.3,000/- per month, the application was filed seeking compensation.
O.P.No.1 i.e. the Contractor filed counter admitting the occurrence of the accident during the course of employment and further admitted to the wages paid and that the deceased was a skilled technician. O.P.No.2 filed counter principally denying the employer and employee relationship. It was pleaded that the deceased was working under O.P.No.1 and not under O.P.No.2 and therefore no liability can be fastened on O.P.No.2.
The Commissioner framed the following issues for consideration:-
1) Whether there exists the employer and employee relationship between the opposite party-1 and the deceased or not.
2) If such relation exists, whether the deceased died due to the injuries sustained by him in the accident occurred during the course of and arising out of employment or not.
3) To what amount of compensation the applicants are entitled to receive and who has to pay it.
On behalf of the Claimants, the son of the deceased was examined as A.W.1 and one witness to the accident by name Tamarana Sanyasi Naidu was examined as A.W.2. The Claimants on their behalf filed Exs.A.1 to A.4 i.e. F.I.R, Inquest Report, Post-mortem Certificate and Paper Publication respectively.
O.P.No.1 did not lead any evidence. O.P.No.2 examined one V. Prasad, Section Officer on their behalf and got marked Exs.R.1 to R.4 i.e. Letter dated 14.08.2006, Work Order dated 30.06.2005, Work Oder No.695 and Chart of Work respectively.
The Commissioner held that the O.P.No.2 is the principal employer and therefore he is liable to pay compensation of Rs.3,13,089/- by taking into consideration the notified wages for lineman. Hence, the present C.M.A is filed.
Heard Sri V.V. Satish, learned counsel for the Appellant and Sri Y.V. Ram Prasad, learned counsel for the Respondents.
In the present appeal, the defence urged in the counter was reiterated by the counsel for the Appellant and contended that there is no employer and employee relationship and therefore the Commissioner had erred in fixing the liability on O.P.No.2/Appellant.
The counsel for the Respondents contended that though the deceased was working under O.P.No.1 he was discharging duties of O.P.No.2 and the O.P.No.2 is liable to pay compensation. The Judgment of the Delhi High Court in M/s. Hadiso Construction Pvt. Ltd., & Anr. vs. Commissioner Employees Compensation & Ors., 2017 SCC OnLine Del 12514 was cited in support of the claim of the Appellant.
Having considered the rival submissions, this Court reasons as follows: The Section 12(1) of the Workmen’s Compensation Act, 1923 is relevant to this case and the same reads as under:-
“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 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.”
The above provision makes it explicit that whenever a work is being executed by the contractor on behalf of the principal, that the principal shall be liable to pay compensation as if he had been employed by him. Section
12 of the Act will apply notwithstanding any agreement to the contrary.
In a similar scenario, the Delhi High Court after referring to Section 12(1) of the Act held at Paragraph 8 as under:-
“8. In the present case, M/s. Sub Laxmi Co-operative Group Housing Society had executed an agreement dated 15th March, 2012 with appellant No.1 for construction work of the Society. Clause 6 of the said agreement imposes the responsibility and liability on the contractor to take all safety precautions for the safety of the workers while executing the construction work solely. Clause 6 further declares that the Society shall have no liability for accident resulting in any injury/death of any person. This Court is of the view that Section 12 will apply notwithstanding any agreement between the principal and the contractor. This Court is satisfied that the ingredients of Section 12 are satisfied in the present case and M/s. Subh Laxmi Cooperative Group Housing Society, being the principal, is liable to pay the compensation to the legal representatives of the deceased in the first instance, with right to recover the same from the contractor. Reference is made to the recent judgment of this Court in Krishan v. Jasoda Devi, 2017 SCC OnLine Del 11137 in which this Court has interpreted Section. This case is squarely covered by the principles laid down in Krishan v. Jasoda Devi (supra).”
A similar view was taken by this Court following the Judgment of Delhi High Court in Shri Krishnan vs. Jasoda Devi and others in C.M.A.No.1493 of 2008 dated 29.07.2002. Therefore, this Court does not find any reason to interfere with the order passed by the Commissioner.
Accordingly, the C.M.A is dismissed.
The State Legal Services Authority shall ensure that the compensation is paid to the Claimant directly into the Aadhar linked bank account of the Claimants at the earliest.
There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.