Atul Kumar Jain, J. - (1.) IN this civil misc. appeal Executive Director, B.M. Birla Science & Technology Centre, Jaipur has challenged the award dated 24.11.2006passed by Commissioner(WC) Court, Dausa in WCC/14/2004 titled as Smt. Mira Devi & Ors. v. Executive & Anr.
(2.) BY the impugned award an amount of compensation to the tune of Rs. 4,30,560/ - along with 9% simple annual interest was ordered to be paid to the claimants Smt. Mira Devi & Ors. who were legal representatives of deceased Hemant Kumar Bairwa who was said to be a 'workman' and working as a painter in the employment of the appellant at the time of his death when he fell down from some height while at work. Death allegedly took place on 18.03.2004 though the accident occurred on 17.03.2004. It has been mentioned by the appellant that Hemant Kumar Bairwa was neither a 'workman' nor he was in the employment of the appellant but he was a labour working under the directions and supervision of the contractor Tulsi Ram Sharma who is respondent No. 5 before us. It is pertinent to mention here that Tulsi Ram Sharma respondent No. 5 has not given appearance in this appeal despite service upon him.
(3.) ON the other hand, it has been argued by respondent Nos. 1 to 4 that the award passed by the Commissioner (WC) Act is perfectly right because death of Hemant Kumar Bairwa occurred while he was in the employment of the appellant and the said death had also arisen out of the said employment. In this regard, Section 12 of The Workmen's Compensation Act, 1923 is quite relevant which reads as under: - - "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, [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 indemnify 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 that 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.";