Great India Trading Co. (P.) Ltd. vs Md. Taslim

Sinha, C.J.—This is an appeal against an order of the Commissioner for Workmen''s Compensation dated August 22, 1962. The facts are briefly as follows: The Great India Trading Co. (Private) Ltd. is a company incorporated under the Indian Companies Act. The Great India Boating Co. is owned by this company and is alleged to be a subsidiary. The company''s business consists of transporting goods by boat. It has its own boats but occasionaly hire other people''s boats for transporting goods from Naskarpara Ghusuri to ships at Kidderpore. Boat No. 3325 belongs to J.H. Khan, also known as Abir Khan. Md. Asique was as assistant majhi of the said boat. The Respondent Md. Taslim was employed as a dandi on the said boat. It is this Md. Taslim who claims that he is a workman who has met with an accident and is entitled to compensation. First of all, he made an application to the Commissioner for Workmen''s Compensation against Rampuria Manick, the proprietor of the Great India Boating Co., which was numbered as claim case No. 1637 of 1959. According to Md. Taslim he was employed by the Great India Trading Co. Ltd. and received wages from Manick Chand Babu of that company. Manick Chand Rampuria is the managing director of the Appellant company. This case was withdrawn in January 1960 with liberty to bring a fresh case. Thereafter the present case was instituted by Md. Taslim against the Great India Trading Co. (Private) Ltd., proprietors of the Great India Boating Co. In the petition the case of Md. Taslim is as follows: He said that he was a workman employed by the Appellant, and on May 6, 1959, he was working on boat A. 3325 under the assistant majhi Md. Asique. He states that the boat was hired by the Appellant on contract from the owner of the said boat Abir Khan. He proceeds to say that while tying the boat with rope laid down from a steamer at Naskarpara Ghusuri Ghar, the steamer moved and his right leg got entangled with the rope and was badly injured so that it had to be amputated above the knee. The monthly wages of the applicant was stated to be between Rs. 60 to Rs. 70. And he has alleged that he received injury in an accident arising out of and in course of his employment under the Appellants and claimed compensation to the extent of Rs. 1,764. Before the Commissioner for Workmen''s Compensation Md. Taslim gave evidence and one Sri H. K. Joshi, assistant manager of the Great India Boating Co., gave evidence. In his evidence, Md. Taslim stated that he was employed under the Great India Trading Co. and received his wages from Manick Chand Babu of that company. He said that he did not know Abir Khan although he heard, that he was the owner of the boat. So far as he was concerned he worked under Md. Asique, assistant majhi, who used to supervise the employment of the dandis in the boat. He then said that Manick Chand was the munshi of the ''Great India''. He would order that goods should be transported to a particular place and Asique would execute that order. Asique used to bring money from the ''Great India,'' pay cash wages and utilise the rest in feeding the dandis. He himself never took wages from the ''Great India'' nor did he ever accompany Asique when he went to the office for drawing the money. It is obvious that this poor workman had no precise knowledge as to whom he was working for. He was working in the boat, and it was his impression that Md. Asique used to get moneys from the Appellant and pay the workman. The position has, however, been made clear by the evidence of H.K. Joshi given on behalf of the Appellants. He stated in his evidence that the boat belonged to J.A. Khan, also known as Abir Khan. The boat No. 3325 was hired by the company to transport the goods from Naskarpara Ghusuri to ship at Kidderpore. According to him, the company had no liability to pay wages to the dandis or majhis of the boat. Manick Ghand Babu is the managing director Of the Great India Trading Co., but he did not engage either any majhi or dandi. Joshi said that Md. Asique never took wages from the company and never paid anything to the Respondent. He further said that the great India Trading Co. was a subsidiary which carried on, the business of supplying boats for transport. It owned some 30 boats by itself and occasionally hired boat from others. It had also its own steamer. The position, therefore, is that the Appellants carried on business of transport. In carrying on this business it hired a boat from a contractor Abir Khan who supplied the boat together with majhi, dandi and everything else. They were not paid by the Appellants directly, nor were they under their control. I how come to the findings of the Commissioner for Workmen''s- Compensation. After considering the whole evidence he has come to the conclusion that the services of the Respondent were not directly hired by the Appellants, but what they did was to hire the boat of Abir Khan who supplied the dandi and majhi, and the entire operation of transport was done under the contractor''s control and superintendence. He held that there was consequently no direct relationship of employer and workman between the Appellant and the Respondent. He says, however, that the matter is governed by Section 12 of the Workmen''s Compensation Act (hereinafter referred to as the ''said Act''). Sub-section (1) of Section 12 runs as follows:

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 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.

The Commissioner for Workmen''s Compensation has held that Abir Khan was a contractor under the Appellant who was the ''principal'' and, therefore, under Sub-section (1) of Section 12 the Appellant was liable as a principal. He has his right of indemnity against the contractor under Sub-section (2). In our opinion this finding is correct. It is true that the workman was confused as to the real position, but upon the evidence of the principal witness for the Appellants, the position has been made clear. Abir Khan owned the boat and lent the services of the boat together with the majhi and dandi, under whose superintendence the work was done. Abir Khan was, therefore, the contractor and the Appellants were the principal. Under the provisions of Sub-section (1) of Section 12, the injury having occurred during the employment by the contractor, the principal would be liable although it would be entitled to indemnify, itself from the contractor. Mr. Mukherjee appearing on behalf of the Appellant next argued that his client was entitled to the protection of Sub-section (4) of Section 12 which is in the following terms:

This section shall not apply in any case where the accident occurred else-where than one, in or about the premises on which the principal has undertaken or usually undertakes as the case may be to execute the work or which are otherwise under his control and management.

It was argued that the accident took place in mid-stream of a public navigable river, and neither the river nor the steamer nor the boat can be said to be premises on which the principal has undertaken or usually undertakes to execute the work. Nor was the work, the usual kind of work carried on by the Appellants. Mr. Mukherjee cited a few cases which I shall consider now. The first case is an English case, Andrews v. Andrews (1908) 2 K.B. 567. The, case arose u/s 4 of the English Workmen''s Compensation Act, 1906, which is in similar terms to Section 12 of the Indian Act. Sub-section (4) of Section 4 is virtually in the same terms as Sub-section (4) of Section 12. The facts in that case were, however, entirely different and were as follows: The Appellant Mears was a builder and contractor. In August 1907 he had contracted to do certain paving work near the Albert Hall, Knightsbridge. Part of his contract was to cart sand to Knights-bridge and remove rubbish from the same place. Mears had sublet a part of his contract to a carter named Andrews. On August 16, 1907, the deceased was employed by Andrews and was carting a load of rubbish from the Albert Hall. While on this journey he fell from his cart in the public street at a distance of about two miles from the Albert Hall and was killed. It was held that the accident did not occur on, or in, or about the premises on which Mears had undertaken to execute the work or which were otherwise under his control or management. The workman died on a public street far from the place of work and, therefore, was not doing work on, or in, or about the premises in which the principal had undertaken to execute the work or which was otherwise under his control or management. The next case cited is a Bench decision of this Court presided over by Chakravartti, C.J., Managing Agents, Ukhra Farming Corpn. Ltd. Vs. Satu Bala Bagdini, . In that case, what was explained was the meaning of the word workman'' as defined in Section 2(h) of the said Act. What happened was that the Respondent''s son Khandu Bagdi was engaged by the Appellant to cut sabai grass in course of which he was bitten by a snake and died. It was held that although the Appellant carried out manufacturing operations, Rhandu Bagdi was not doing any work inside the factory or within the precincts thereof nor was he employed in any manufacturing process. It was held that it could not be said that he was a workman as defined in Section 2(h) of the said Act. In my opinion this case has nothing to do with the facts of the instant case. The Divisional Bench judgment of S.M. Ghose Vs. National Sheet and Metal Works Ltd. and Another, was u/s 12 of the said Act but was on a completely different point. Under Sub-section (1) a contractor must be carrying out the same kind of work as was normally carried out by the principal in order to attract its provision. One Ezad Baksh, a painter mistri, sustained injury as a result of accidental fall from a scaffolding, while he was painting a factory shed which formed part of the premises occupied by National Sheet and Metal Works Ltd. The workman''s left knee was injured and there had to be an operation resulting incapacity of 50 %. It was held, however, that there was no evidence to show that the National Sheet and Metal Works Ltd. carried on the business of painting work or that it ordinarily formed the whole or part of its business. Consequently, it was held that Section 12 did not apply. The same point arose in New India Tannis Ltd. v. Aurora Singh Mogbi AIR 1957 Cal. 620. In that case the workman received injury while repairing a chimney of the factory under a contractor. It was held that the company which carried on manufacture inside the factory was not responsible because it could not be said that repairing a chimney was part of its ordinary trade or business.

In my opinion it is no good going for assistance to cases which depend on their own facts. What are the facts in the present case? The Appellants usually and ordinarily carried on the business of transportation of goods by boat. They engaged a contractor who supplied boat and crew and did the same work under their own superintendence. Since transaction of goods loaded or unloaded from steamer was included in the ordinary business of the company, such a steamer would be premises in which the work took place and took place on specified occasion. It was not as if the accident occurred in, mid-stream away from the steamer. A rope had been thrown from the steamer, and while tying the boat to the steamer the workman got entangled. It is well-known that the location of the accident is not confined to the immediate location of the employer''s work, but there can be a notional extension. I have no doubt that a boat alongside the steamer engaged in the operation of unloading would be within the scope of this notional extension. In the English case cited above, the accident occurred far from the place of work and on the high street and consequently did not satisfy the provision of Section 4(4) of the English Act. In my opinion the facts in the present case satisfy the provisions of Section 12(4) of the Indian Act. The result is that the Appellants have rightly been made liable and there does not appear to be any reason for interference. Accordingly, the appeal fails and is dismissed with costs. Stay orders are vacated.

Arun K. Mukherjea, J.

I agree.