(1.) The appellant has challenged the judgment and award dated 25.9.2007 passed by the Commissioner under Workmen's Compensation Act at Vadodara in Workmen's Compensation
Application No.77 of 1999. Such claim petition was filed by respondent No.1 as injured workman
against the present appellant as opponent No.2, for which the applicant was working through its
contractor, being original opponent No.1, who is respondent No.2 herein. Such contractor, namely
V. Vijayan, Proprietor of Getco Engineers has chosen to remain absent throughout the proceedings
before the Trial Court so also in this
(2.) By the impugned judgment, the Commissioner has awarded an amount of Rs.1,58,615.43 ps. as compensation with 12% interest and 25% penalty to be recovered from both the opponents jointly
and severally. The claimant has claimed compensation of Rs.2,44,023.75 ps. for amputation of four
fingers of his right hand. When he was an employee of opponent No.1 contractor, he was repairing a
machinery of the present appellant. Therefore, basic contention in this appeal by the appellant is to
the effect that since the injured claimant was not in its employment and pay -roll, they cannot be
held liable and responsible to pay compensation as per the impugned judgment. To substantiate
their claim or their submission, the appellant is relying upon commentary of Workmen's
Compensation Act, 1923 by Suranjan Chakraverti in its Fourth Edition by The Law Book Company
(P) Ltd., wherein on page 366, relating to principle embodied in the provisions of Section 12, it is
stated under the heading of 'Report of Select Committee', as under: -
"Under this section as originally drafted, the liability to pay compensation was thrown primarily upon the employer. Sub - clause (2) which gave him a statutory right of indemnity against a contractor applied only to contracts made before the commencement of the Act. The effect of this was that, in the case of a contract made after the passing of the Act, the employer would not be entitled to be indemnified by the contractor unless he had inserted in the contract a special stipulation to this effect. In most cases written contracts are not entered into and the employer would have little or no protection against collusion between the contractor and the workman. In other cases, the contractors are themselves men of substance and it would be more convenient for all parties concerned if the workmen were able to recover compensation from the contractor in the first instance. We have accordingly modified this clause to bring it into line with the principle followed in Section 5 of the English Act. The workman is thus enabled to proceed against the contractors or against the employer, and the contractor is liable to indemnify the employer in all cases. We have, at the same time, made the application of the section somewhat clearer by substituting the words "which is ordinarily part of the trade or business of the principal" for the words "which has been or is ordinarily undertaken by the principal in the course of or for the purpose of his trade or business. We have further eliminated the provision in the Bill as introduced, exempted the Government and local authorities from the liability imposed by this clause. These authorities are liable just in the same manner as private individuals."
(3.) However, it cannot be ignored that in the same commentary, statement of objects and reasons for such Act as published in Gazette of India dated 16.9.1992, at page 314 -316 reads as under: -
"Where an employer does his work through contractors, special provision is necessary. In some cases, the employer can reasonably beheld responsible for the conditions of employer; in other cases, he cannot. The distinction made here is between contractors who are employed in the course of, or for the purpose of, the original employer's trade or business and those who are not. Only in the latter cases, will the contractor be liable to pay the compensation; in all other cases, the original employer will be liable. Thus, for example, if a mine -owner engages labour by means of contractors who supervise these men while at work, the mine -owner will be responsible. But if the owner of a cotton mill employs an engineering firm to erect an extension to his mill, the engineering firm will be liable to pay compensation to the men they employ.
The exceptions are made. If a contractor does his work elsewhere than in or about the original employer's premises, the latter has no real control over the safety of the workman, and he is, therefore, relieved from responsibility."
If any workman suffers an injury as a result of an accident arising out of or in the
course of the employment, the employer is liable to pay compensation to the
workman under Section 3. There must be an employer and employee relationship
between the workman and the person against whom the compensation is asked for.
But in many cases, the persons who want to get work done, try to avoid this liability
by contracting with someone else to provide labour or to execute the work and then
contend that as there is no employer and employee relationship between the
workman who suffered an injury and themselves, they are not liable to pay any
compensation. To prevent such escape from liability to pay compensation, Section 12
has been enacted.
So long as Section 12(1) does not make specifically subject to any contract to the contrary the section
would have application in all cases where the conditions specified therein are satisfied. At the best,
the agreements entered into between the principal and contractor can govern only their inter se
rights and liabilities and cannot affect the rights of workmen or their dependents to get
compensation either from the principal or from the contractor at their option.
In Kale Mansukh Rana v. Patel Natha Ramji, [(1993) 1 ACC 240 (Guj)]the Gujarat High Court held
that under section 12, an option is given to the victim of employment injuries to claim compensation
either from the principal or from the employer. ";