U.P. State Warehousing Corporation Through Regional Manager & Another vs Hriday Ram & Others

Manoj K. Tiwari, J

This Appeal from Order has been filed by U.P. State Warehousing Corporation challenging the order passed by Workmen Compensation Commissioner/ Additional District Magistrate- Administration, Dehradun in Workmen Compensation Case No. 07 of 2008, whereby a sum of Rs. 4,36,940/- was awarded as compensation to the claimants with 12% interest.

This Appeal is heard on the following substantial questions of law:

"2. Whether the building owner can be held liable for the death of a workman, who died during working, when he was engaged by a work contractor for one or two days on daily basis for completing repairs ?

Mr. Surendra Singh @ Somendra Singh died in an accident on 14.03.2001 while repairing roof of the warehouse belonging to U.P. State Warehousing Corporation (appellant herein). His legal representatives filed an application under Workmen's Compensation Act, which was registered as Case No. 7 of 2001, subsequently, it was renumbered as Case No. 7 of 2008. The said application was allowed by the Workmen Compensation Commissioner vide order dated 08.12.2008. Thus, feeling aggrieved, U.P. State Warehousing Corporation has filed this Appeal.

Heard learned counsel for the parties and perused the record.

The deceased workman was unmarried, therefore, the Claim Petition was filed by his mother and father; besides two brothers and three sisters. U.P. State Warehousing Corporation and Mr. Anil Kala, through whom deceased was engaged, were impleaded as party respondents. In the Claim Petition, the claimants asserted that date of birth of the deceased is 25.02.1977 and, at the time of his death, he was young and healthy man of 24 years of age. It was further stated that workman was working as Mason at Dehradun and he was engaged through Mr. Anil Kala to repair roof of appellant's warehouse. It was further stated that roof of the warehouse was made of cement sheets which had become weak at certain points and this fact was not disclosed to the workman. It was further stated that, in the afternoon of 14.03.2001, when the repair work was in progress, roof of the warehouse suddenly collapsed, as a result, the workman fell down on the floor of the warehouse from a height of 35 feet and received fatal injuries. It was further stated that lock of the warehouse could be opened after more than one and half hours of the accident, consequently, he could not be given any medical aid. It was further stated that workman was earning Rs. 150/- per day as wages. The claimants thus claimed compensation of Rs. 19,44,000/- alongwith interest @ 18% per annum.

The appellants filed Written Statement stating that cement sheets of the roof of warehouse were strong and the workman had died due to his own negligence. It was further contended that the workman was engaged through respondent no. 8 and the appellant is not responsible for accident.

Mr. Anil Kala (respondent no. 8 herein) also filed his Written Statement, in which he also stated that accident occurred due to negligence on the part of workman, who was engaged as a Daily Wager, and further that he is not liable to pay any compensation.

Learned Commissioner framed following three issues, based on the rival contentions of the parties:

"1. Whether the deceased comes within the definition of workmen.

Whether the Claim Petition is maintainable in the absence of necessary parties.

Whether the claimants were dependent on the deceased Surendra Singh, if yes, then its effect?"

The factum of accident was not disputed by any of the parties and the appellants had contended that accident had occurred due to negligence of the deceased. Negligence has no bearing in a claim under Workmen's Compensation Act. Learned Commissioner decided issue nos. 1 & 2 in favour of the claimants by holding that deceased comes within the definition of workman and further that all necessary parties have been impleaded. Regarding issue no. 3, it was held that only mother and father of the workman were dependent upon him, accordingly, learned Commissioner awarded Rs. 4,36,940/- as compensation to the parents of the deceased with 12% interest.

The sole contention made by learned Senior Counsel for the appellants is that since the deceased was engaged through a contractor on daily wages one or two days before the accident, therefore, he is not a workman, hence, the appellants are not liable to pay any compensation for his death. This submission made on behalf of the appellants is bereft of merit. Since the accident had occurred in the year 2001, therefore, the definition of expression "Workman" given in Section 2 (n) of Workmen's Compensation Act at the relevant point of time is extracted below:

"2 (n). "workman" means any person who is-

(i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989) not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ia) (a) a master, seaman or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or;

(ii) employed in any such capacity as is specified in schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."

According to Section 2 (n) of Workmen's Compensation Act, any person who is employed in such capacity as is specified in Schedule 2 is also a Workman. Therefore, it would be useful to reproduce item no. viii of Schedule 2 for ready reference, which is extracted below:

"(viii) employed in the construction, maintenance, repair or demolition of -

(a) any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof; or

(b) any dam or embankment which is twelve feet or more in height from its lowest to its highest point; or

(c) any road, bridge, tunnel or canal; or

(d) any wharf, quay, seawall or other marine work including any moorings of ships."

The appellants admit that the work of repairing of roof of the warehouse was entrusted to a contractor. Section 12 of Employees' Compensation Act deals with such a situation where principal employer engages the workman through a contractor. Section 12 of Employees' Compensation Act is extracted below:

"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 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.

(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, 2 or any other person from whom the workman 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 workman 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.

(3) Nothing in this section shall be construed as preventing a workman 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 has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management."

A bare perusal of Section 12 of the Act would show that the liability, which can be fastened under that provision, would come into play only when any person was employed for the purpose of "his trade or business". Thus, for fastening liability of compensation upon the principal employer, the duty of the Court is to see whether there is any nexus between employment of the workman with the 'trade or business' of the principal.

The appellant is a public sector undertaking of State of Uttar Pradesh, which is engaged in the business of providing warehouse on rent for storing food grains and other edible items and the appellant earns profit out of the said business. Having regard to the nature of the business, it is imperative that the warehouse must be kept moisture free and there should not be any leakage from the roof or seepage from walls of the warehouse. Thus, maintenance and upkeep of the warehouse would form integral part of the business of the appellant, therefore, employment of some person, either on contractual basis or otherwise, for maintaining the warehouse would come under the expression "business" as incorporated under Section 12 of the Act. No distinction has been made with respect to any employee under Section 12 of the Act, based on the nature of engagement, whether it is direct or through a contractor. There is a clear nexus in between the alleged accident and the employment of the victim, which would come under the purview of the expression "business" engrafted under Section 12 of the Act. So, there cannot be any escape for the appellants from the liability to compensate the claimants.

There is one more aspect of the matter. The work entrusted to the workman was of a nature posing threat to his life or danger to his body, therefore, the appellants were under a duty to take all safety measures to ensure that in case of some accident, no serious injuries are caused to the workman. There is no material on record to show that the appellant as principal employer had taken necessary safety measures to avoid the fatal accident.

The next question which falls for consideration whether the principal employer (appellants) are entitled to be indemnified by the contractor in terms of Section 12 (2) of the Act. The contract entered into between the appellants and the contractor (respondent no. 8 herein) has not been brought on record. Whether there was any condition in the said contract for indemnification by the contractor to the principal employer in case of injury or death caused to a workman while executing the repair work, is not known. Thus, in the absence of any material on record to prove that the contractor was liable to indemnify the appellants in case of an accident, the liability to pay compensation cannot be fastened upon the contractor.

In such view of the matter, this Court finds no illegality or perversity in the order passed by learned Commissioner, which may warrant interference in this appeal.

Accordingly, the Appeal from Order fails and is dismissed.

There will be no order as to costs.