A.K. Janah, J. - (1.) THIS Rule was obtained against the judgment of the Full Bench of the Court of Small Causes, Calcutta, rejecting an application under Section 38 of the Presidency Small Cause Courts Act. The opposite party filed a suit against the Petitioner for recovery of a sum of Rs. 2413.43p. on account of compensation. The Plaintiff's case in short was as follows: On January 20, 1967, an accident occurred in course of unloading of cargo from the ship S.S. Leipzig in the K. P. Dock. The Defendant Petitioner is admittedly the accredited agent for Calcutta of Veb Deutche Seereederei Rostock who was the owner of the ship at the relevant time. It was alleged that as a result of the accident a porter of the Plaintiff, named Sadagar, sustained injury on his person. It was alleged that the porter Sadagar who was assisting the unloading operation of the cargo from the said vessel sustained severe injury while a load of two bundles of billets was being released by a double -legged chain on a 5 -ton trailer by the forepart derrick of Hatch No. 3 of the ship. The derrick then was operated by Mohd. Mainuddin, a winchman During the unloading operation the inboard wire the said derrick was suddenly pulled up by the winchman resulting in a severe swing of the resting sling load which dashed against the bundles of billets lying on the ship's side of the trailer, thereby causing the bundle to fall on the quay, and ultimately the sling load struck the left leg of Sadagar. As a result of the injury the said porter was disabled from performing his usual duties from January 21, 1967 to February 21, 1968, and the Plaintiff had to pay a sum of Rs, 1354.47p. to him on account of his injury leave allowance and a sum of Rs. 1058.96p. as medical expenses. There was no dispute between the parties that the accident occurred due to the negligence of the winchman who was at the relevant time operating the derrick. It was alleged that the Defendant having failed and neglected to pay the above damages the Plaintiff had to institute the suit for the recovery of the said amount.
(2.) THE suit was contested by the Defendant on the ground that the winchman, Mohd. Mainuddin, for whose negligence the accident occurred was not an employee of the agent or the Defendant inasmuch as he had been supplied by the Culcutta Dock Labour Board. The Defendant alleged that it was Calcutta Dock Labour Board which was liable on the ground that they supplied an in -efficient worker The Defendant further pleaded that the suit was bad for non -joinder of necessary party i.e. Calcutta Dock Labour Board. The suit was at first dismissed by the trial court. Against the said decision there was an application under Section 38 of the Presidency Small Cause Courts Act filed by the Plaintiff. The Full Bench set aside the judgment and order of the trial court and sent back the suit on remand to the trial court for re -hearing. After the matter went back to the trial court the suit was decreed in favour of the Plaintiff. The trial court found that the accident occurred due to the negligence of the winchman, and as a result of the accident the porter, Sadagar, was injured, and also that the Plaintiff had to incur expenses of Rs. 2413.43p. on account of injury leave allowance and medical expenses for the injured workman. The trial court decreed the suit on the ground that the bye -laws framed under the Calcutta Port Act, 1890 provided that the Commissioners for the Port of Calcutta were entitled to pursue only the ship for anything done on its board, and the Defendant being the agent of the owner of the ship was liable for the compensation. The trial court also relied upon two decisions reported in Great Eastern Shipping Co. v. Commissioners for the Port of Calcutta : 76 C.W.N. 765 and Vizagapattam Dock Labour Board v. Stevedore Association, A.I.R. 1970 S.C. 1625 for fixing the liability upon the Defendant. Against the decision of the trial court the Defendant filed an application under Section 38 of the Presidency Small Cause Courts Act, which was rejected by the Full Bench, as has already been stated.
(3.) THE Full Bench found that the Dock Labour Board cannot be considered to be the employer of the dock worker and it is the registered employer to whom the dock worker is allotted who is the employer of the dock worker. The Full Bench further held that under Section 89 of the Calcutta Port Act, 1890, the master or agent of a ship was alone liable for any damage or mischief caused by any of the persons employed in the vessel. In this view the Full Bench rejected the application under Section 38. The present rule has been obtained against the said order of the Full Bench.;