H. Narayan vs Thimmakka

S. Sujatha, J.—This appeal is directed against the Judgment and Order passed by the Commissioner for Workmen''s Compensation, Bangalore, in WCA/FC/CR No. 1/2011 whereby the Commissioner has awarded compensation of Rs. 3,68,340/- with interest at 12% per annum after 30 days from the date of the accident till the date of deposit, fastening the liability on the appellant herein.

Briefly stated the facts are:

That the respondents herein, widow and children of the deceased Thippanna filed a claim petition before the Commissioner contending that the deceased Thippanna fell down from the third floor of the building belonging to the appellant, on 27.10.2010 at about 12 pm while painting the building of the appellant under the instructions of one Gurappa [Mestri] and the owner of the building/appellant, and sustained employment injuries in the accident arising out of and in the course of employment and succumbed to the said injuries on 28 10.2010. It transpires that immediately after the accident, Hoysala police visited the spot of accident and thereafter Mr. Gurappa who was present at the spot, had taken Thippanna to St. John''s Hospital, Bangalore, for treatment and got him discharged on the same day. Later on, on 28.10.2010 at about 6 am, the said Gurappa accompanied by the owner of the building dropped the injured in a car at his residence situated at Thorapalli Village, Hosur Taluk, Krishnagiri District, Subsequently, the deceased Thippanna became restless due to the acute stomach pain. As such, he was initially shifted to Vijaya Nursing Home, Hosur, subsequently to Narayana Hrudayalaya, St. John''s Hospital and Victoria Hospital, finally at about 3 pm on 28.10.2010, he succumbed to the employment injuries. Based on these facts, the claimants approached the Commissioner claiming compensation for the death of the said Thippanna in the employment accident. The appellant herein resisted the claim. The Commissioner, after evaluating the evidence on record, awarded the compensation as mentioned above fixing the liability on the appellant to make the payment. Being aggrieved, the respondent/owner of the building is in appeal.

The learned Counsel appearing for the appellant placing reliance on the Judgment of the Hon''ble Apex Court in the case of ''Lakshminara Yana Shetty v. Shantha And Another reported in 2002 (3) LLJ 523 would contend that the deceased painter was not engaged by the appellant for any painting work, even assuming not admitting, would not fall within the ambit of Workmen''s Compensation Act, 1923 [''Act'', for short] and hence the decision of the Commissioner in entertaining the claim and awarding the compensation fixing the liability on the appellant is wholly inconceivable. It is the contention of the appellant that one Gurappa was entrusted with the painting work of his house and the same was completed on 27.10.2010 itself. There was no occasion for the deceased Thippanna to be present at the building of the appellant in the midnight at about 12 pm. After consuming alcohol, the deceased fell down in the neighbour''s compound and sustained injuries. However, the appellant was oblivious of any accident caused to the deceased Thippanna. Thus, denying the factum of employment accident, the learned Counsel submits that the Commissioner grossly erred in not appreciating the material evidence on record and mechanically awarded the compensation despite the provisions of the Act are not applicable to the facts of the present case.

Per contra, Sri. N. Gopalakrishna, learned counsel appearing for the respondent would seek to sustain the impugned Judgment and contend that the appellant had not made out any substantive grounds to interfere with the Judgment of the Commissioner. Learned counsel submits that the Judgment of the Hon''ble Apex Court in the case of Lakhshminarayana Sketty''s (supra) is not applicable to the facts of the present case since Section 2(n) of the Act was omitted w.e.f. 18.01.2010. Section 2(1)(d)(d) of the Act, inserted by Act No.45/2009 w.e.f 18.1.2010 is applicable to the facts on hand, wherein clause (iii) of Section 2(1)(d)(d) contemplates that ''employee'' means a person employed in any such capacity as is specified in Schedule-II. Clause (viii)(a) of Schedule-II provides that a person who is employed in the construction, maintenance, repair or demolition of any building which is designed to be or has been more than one storey in height above the ground or 12 feet or more from the ground level to the apex of the roof is an ''employee'' for the purposes of the Act. The deceased while painting the building fell down from the third floor and succumbed to the employment injuries. As such, the contention of the appellant deserves to be negated in much as the non-applicability of the Act.

Having heard the learned counsel for the parties, the substantial question of law that arises for determination in this appeal is, in the facts and circumstances of the case, whether the commissioner was justified in holding that the accident in question occurred during the course of employment and out of employment with the appellant as the painting work was entrusted to one, Sri Gurappa - RW 2 under whom the deceased was working as an employee ?

The 1st claimant examined herself as PW-1 and reiterated the statements set out in the claim petition. It is her specific case that the deceased was employed by Gurappa, a contractor, who was a resident of her neighbouring village. The testimony of PW-1 discloses that the said Gurappa had visited the place of the deceased on 25.10.2010 and engaged him to paint the building of the appellant, a relative of Gurappa, at Koramangala, Bangalore. The further statement of the PW-1 is to the effect that the said Gurappa had dropped the deceased Thippanna at about 6 a.m. on 28.10.2010 on the premise that the said painter-Thippanna sustained injuries while attending the painting work and immediate medical treatment was given to him. The factual matrix of the case reveals that the deceased was made to run from one hospital to the other for getting the appropriate medical treatment subsequent to the acute pain suffered by him on 28.10.2010 due to employment injuries sustained by him. Best efforts were made by the family members of the workman to save him, but in vain. Had the safety precautionary measures taken by the appellant-principal employer and the contractor-Gurappa, the employment accident would have been averted. It is conspicuous that the deceased got discharged hurriedly by the contractor-Gurappa without providing sufficient medical treatment, left him at his residence in order to escape the liability. The appellant, who was examined as RW-1 has admitted that the painting work was entrusted by him to Gurappa to paint his house. The police records at Exs. P4 to P10 viz., FIR, charge sheet, spot panchanama, spot sketch, dead body investigation report, postmortem report, receipt for having paid the fees at BBMP, make it clear that the deceased Thippanna fell down from the third floor of the appellant''s building, sustained grievous injuries while painting at the building of the appellant and succumbed to the said injuries. Charge sheet is filed against the appellant as well as the contractor-Gurappa. Self-interested testimony of RW-2 do not lend any credence much against the police documents reported by the police authorities after due investigation made. Deceased Thippanna enganged by Gurappa to attend the painting work at the appellant''s building cannot be ruled out.

As regards the applicability of the provisions of the Act to the case on hand, it is beneficial to refer to the relevant provisions of the Act. Section 2(1)(d)(d)(iii) of the Act provides that ''employee'' means a person who is employed in such capacity as is specified in Schedule-II, whether the contract of employment was made before or after passing of the Act and whether such contract is expressed or implied, oral or in writing. Schedule-II of the Act provides the list of persons who, subject to the provisions of Section 2(1)(d)(d) are included in the definition of ''employees''. It is manifestly clear from Clause (viii) (a) of Schedule-II that any person who is employed in the construction, maintenance, repair or demolition of any building which is designed to be or is or has been more than or storey in height above the ground or twelve feet or more from the ground level to the apex of the roof, shall be an employee for the purposes of the Act. Painting work of the building is nothing short of maintenance work. A conjoint reading of these provisions makes it clear that the person employed in construction, maintenance, repair or demolition of any building shall come within the meaning of ''employee'' as defined in Section 2(1)(d)(d) of the Act. Hence, the judgment relied upon by the learned counsel appearing for the appellant in Lakshminarayana Shetty''s case (supra) is not applicable to the facts of the present case. It can be distinguished on other ground also. The Hon''ble Apex Court rendered the judgment in Lakshminaraya Shetty''s case (supra) in the context of the painter engaged by the appellant therein to paint the house, while the painter doing the work, unfortunately fell down and died. In such circumstances, it is held that the action of the appellant by engaging a person who had undertaken the work of painting the house did not fall within the four coiners of the Act. The same if viewed in the context of the present case, the appellant had entrusted the work of painting to Gurappa, who, in turn had employed the deceased Thippanna as evidenced from, the records. A relationship of principal employer and the contractor subsists between the appellant and the Gurappa. The principal employer shall be liable to pay to any employee employed in the execution of the work in terms of Section 12 of the Act, any compensation which he could have been liable to pay if the employee had been employed by him. Thus, the principal employer cannot escape from his liability to pay compensation to the employee.

The Commissioner alter elaborately appreciating the evidence on record, determined the monthly wages of the deceased at Rs. 1,000/- and awarded the compensation, applying the relevant factor applicable to the age of the deceased. No irregularity or infirmity is found with the impugned Judgment and order passed by the Commissioner. Given the circumstances, this court is of the considered opinion that the appellant is liable to make the payment of the compensation amount awarded to the claimants and is at liberty to recover the same from Gurappa, the contractor to whom the painting work was entrusted.

The substantial question of law is answered accordingly.

In the result, the appeal is dismissed as devoid of merits.