2019 LLR 275

GUJARAT HIGH COURT

Hon’ble Mr. S.G. Shah, J.

R/F.A. No. 2040/2005, D/–12-7-2018

 

Kumar Mangalam

vs.

Chief Manager, Telecom, Gujarat Circle

 

WORKMEN’S COMPENSATION – Impugned award by Commissioner under the W.C. Act –Has been deposited by appellant and disbursed in favour of deleted claimant – It is contended that such deposit is with objection that it shall be subject to result of such appeal – However no irregularity or illegality found with such award – Whereby the Commissioner has awarded the compensation to legal heirs and dependents of victim – When such incident taken place during course of employment of victim – Commissioner has taken into consideration the evidence on record – No interference required with such award.

Para 41

 

For Petitioner: Ms. Mamta R. Vyas, Advocate.

 

For Respondent: Mr. Joy Mathew, Advocate.

IMPORTANT POINTS

• When incident has taken place during the court of employment, the legal heirs/dependents of the victim are entitled to compensation under the Employees Compensation Act, 1923.

 

• When it has been proved by way of evidence that the incident has taken place during the court of employment, the principal employer or contractor are liable to pay compensation to the legal heirs/dependents of the victim.

 

• In the absence of contractor or the Principal employer fails to establish that the victim was never employed by him, the principal employer is liable to pay the amount of compensation to the claimants.

ORAL JUDGMENT

S.G. SHAH, J.—1. Heard learned advocate Ms. Mamta R. Vyas for the appellant and learned advocate Mr. Joy Mathew for the respondents No. 1 and 2. When rest of the respondents are deleted from the array of causetitle, and more particularly, when impugned award by the Commissioner under the Workmen’s Compensation Act, has been deposited by the appellant and disbursed in favour of the deleted claimant being respondent No.3 herein, though it is observed in order dated 18.6.2018 that appeal needs to be dismissed as it has become infructous, learned advocate Ms. Vyas has vehemently argued the matter to point out that though appellant has deposited the amount, the appellant has as back as on 17.1.2005, while depositing the amount as per the award, categorically disclosed before the Commissioner under the Workmen’s Compensation Act and Labour Court at Bhavnagar in Workman Fatal Case No. 30 of 1998 that such deposit is with objection and it shall be subject to result of such appeal. In view of such disclosure, instead of dismissing the appeal on technical ground, it requires to be considered on its own merits.

The appellant herein is original opponent No. 3 in above-referred case being Workman Fatal Case No. 30 of 1998 before the Commissioner. Such application was preferred by legal heirs of one Kantibhai Bhimabhai when he died on 30.9.1996 because of accident arising out of and during the course of his employment. It is undisputed fact that the work, during the course of which the victim had received injuries and died, was pertaining to respondents No. 1 and 2. However, it is also undisputed fact that respondents No. 1 and 2 had assigned such work on contract basis to the present appellant. Therefore, by all means, if respondents No. 1 and 2 are principal employers, then, respondent No. 3 would be contractor-cum-employer of the workman. Therefore, at the most, the Commissioner may ask the principal employers to initially pay the compensation, but with a direction that principal employers can recover such amount, if any paid to the claimants, from the actual contractor, who has employed the workman.

2. Whereas, the appellant has contended that, factually, though respondents No. 1 and 2 had assigned a contract to them, they have not employed the deceased victim and therefore, they are not liable to pay compensation to the legal heirs of the victim. The appellant has submitted that, in fact, they have assigned the work to one M/s. Telelink and therefore, if at all anybody is liable to pay compensation to the victim of incident, then, it is such company, namely, M/s. Telelink, who had engaged the deceased employee for carrying out certain work. The record and proceeding shows that for the purpose, in fact, claimants have as back as on 2.9.1998 submitted an application at Exh.8 before the Commissioner, praying to join such company, namely, M/s. Telelink as opponent. In such application, in fact, the appellant has relied upon the information parted with by the present appellant that they have assigned the work to such M/s. Telelink, though appellant has contended that they have not engaged deceased Kantibhai Bhimabhai in their company. Unfortunately, the Commissioner has by its reasoned order dated 17.6.2002 rejected the application at Exh.8 by the original claimant, requesting to join said M/s. Telelink as opponent for the reasons assigned in such detailed order. It is undisputed fact that such order has not been challenged by anyone, including the present appellant and therefore, ultimately, from available evidence before the Commissioner, when Commissioner has came to the conclusion that victim – Kantibhai Bhimabhai has received fatal injuries while working on the project of respondents No.1 and 2 and when it is admitted position that respondents No. 1 and 2 have assigned the work on contract basis to present appellant, the Commissioner has awarded the compensation by directing the present appellant to pay Rs. 2,07,980/- with 12% interest to the claimant.

3. Now, appellant has come forward with a story that since they are not the actual employer of the deceased victim, they are not liable to pay compensation. However, the fact remains that pursuant to impugned judgment and order dated 27.4.2004 in above-referred Workman Fatal Case No.30 of 1998 and pursuant to directions by this court, appellant has already deposited such amount and it has been disbursed in favour of the original claimants, and more particularly, when it is undisputed fact that the work, during which the victim has received fatal injuries was pertaining to respondents No.1 and 2 and when they have assigned such work on contract basis to present appellant, even if present appellant has assigned such labour work on sub-contract to some other agency like M/s. Telelink, appellant is certainly liable to compensate the victims of such incident as provided u/s. 12 of the Workmen’s Compensation Act. At the most, if at all appellant is under the impression that they have not employed the deceased victim, but he was employed by their sub-contractor, in this case M/s. Telelink, then, appellant should have challenged the order dated 17.6.2002 below Exh.8, in which case court would have allowed the present appeal to recover such amount from such sub-contractor and actual employer, if at all it is so proved before it, but, otherwise, when there is no dispute regarding contract between respondents No.1 and 2 with the appellant, and the fact that victim has died in incident that occurred while performing the work under such contract, even as principal employer, the appellant is responsible and liable to pay compensation to the claimants.

4. I have also perused the entire record and proceeding as well as the impugned judgment. I do not find any irregularity or illegality so as to interfere with such reasoned award whereby the Commissioner has awarded the compensation to the legal heirs and dependents of the victim of incident when such incident had taken place during the course of employment of the victim. Therefore, by all means, employer of the victim so also either the contractor or the principal employer, as the case may be, in given case, are certainly liable to pay compensation to the legal heirs of victim.

5. While rejecting application at Exh.8, by order dated 17.6.2002, the Commissioner has already held, relying upon available pleading and evidence on record that pursuant to contract between the opponent Nos.1 and 2 with the appellant, all the liability of the workers on the project rests upon the present appellant and when appellant has failed to produce documentary evidence to prove that M/s. Telelink is liable. Therefore, in absence of challenge of such order, now, appellants are estopped from taking plea which was already concluded by such order.

6. While deciding the claim application, the Commissioner has already framed issues regarding entitlement of claimant, including issue that whether victim has received injuries during the course of his employment or not. There is also an issue that claimants are entitled for compensation from whom. Thereby, if appellant has taken care to prove his contentions which are raised in this appeal before the Commissioner, he would have no grievance, but in absence of evidence before the Commissioner, now, appellant is relying upon their own disclosure in their payment purshis dated 17.1.2005, which is not conclusive proof and therefore, there is no substance in the appeal. Whereas, the Commissioner has while deciding all the issues against the present appellant discussed the available evidence on record and it has come on record from the witness of opponent No. 1 and 2 that labourers were working for present appellant. There is no evidence in rebuttal of such evidence by the principal employer by its contractor. Even the witness of the claimant has also confirmed that salary of the victim was being paid by the appellant.

7. In view of above facts and circumstances, I do not find any substance in this appeal so as to interfere with in the impugned award, hence, the First Appeal stands dismissed.

Appeal Dismissed