CHAUHAN, J. - (1.) THIS appeal challenges the order dated 5. 6. 2006 passed by Workman Compensation Commissioner, Jaipur City, Jaipur whereby the learned Commissioner has granted a compensation of Rs. 78,087/- along with an interest @ 10% per annum w. e. f. 3. 6. 1999 in favour of Mool Chand Kumawat, the respondent No. 1.
(2.) THE brief facts of the case are that the Mool Chand was working at the factory owned by the appellant. On 3. 6. 1999, wen he was working on the Lathe machine, his left hand was caught in the machine. Consequently, he lost two fingers and sustained a fracture in this thumb and the smallest finger. At the time of his accident, he was earning Rs. 2,500/- per month. Despite the notice sent by Mool Chand to the appellant on 21. 8. 1999, the compensation under the Workmen's Compensation Act, 1923 (`the Act of 1923' for short) was not paid to him. Thus, he filed a claim petition before the learned Commissioner for a compensation of Rs. 1,56,175/ -. The appellant filed their reply before the learned Commissioner. In the written statement, they denied that Mool Chand had ever worked for them. They also denied the factum of the accident and the factum of their receiving the notice dated 21. 8. 1999. The appellant also claimed that they are covered under the Employees State Insurance Act, 1948 (`the Act of 1948', for short ). Therefore, the application filed under the Act of 1923 is not maintainable. The respondent No. 2, the Employees State Insurance Corporation (`the Corporation', for short) also filed their reply. The respondent No. 2 claimed that in September 1999, the appellant had sent a list of laborers working in their factory. However, the said list did not contain the name of Mool Chand. Moreover, on the date of the accident, the employee was not insured. Therefore, the Corporation is not liable to pay any compensation to Mool Chand. The learned Commissioner framed four issues. In order to prove his case, Mool Chand produced himself, and his coworkers as witnesses and submitted certain documents. In order to substantiate their case, the appellant also examined certain witnesses and submitted certain documents. After going through the oral and documentary evidence, the learned Commissioner granted compensation, as aforementioned. Hence, this appeal before this Court. Mr. S. N. Shah, the learned counsel for the appellant, has raised two contentions before this Court; firstly, Mool Chand had never worked for the appellant. Secondly, Mool Chand in his affidavit as well as in his cross-examination admits that the industry was covered by the Act of 1948. Therefore, under Section 53 of the Act of 1948, the claim petition under the Act of 1923 was not maintainable. Therefore, the learned Commissioner should have rejected the claim petition as non-maintainable. Instead, the learned Commissioner has granted compensation to Mool Chand.
(3.) ON the other hand, Mr. Banvinder Singh has argued that both Mool Chand and his witness had categorically stated that he was an employee of the appellant. Although, it is true and the industry was registered with the Corporation, but the fact remains that no deductions were made from the salary of the employees and the appellant, as required under the Act of 1948, made no contribution. Therefore, merely because the industry was registered with the Corporation would not oust the jurisdiction of the learned Commissioner. Moreover, at the time of the incident, Mool Chand did not know that the industry was registered with the Corporation. Therefore, he was justified in filing the claim petition under the Act of 1923 before the learned Commissioner. While supporting the contentions of respondent No. 1, Mool Chand, Mr. A. S. Khangarot, the learned counsel for the respondent-Corporation, has argued that the relationship between the Corporation and the employer is that of trust. The employer is legally bound to contribute under the Act of 1948. However, the appellant had failed to do so. Since the appellant has failed to make the contribution as required by the Act of 1948, the appellant cannot take the advantage of the said Act. Therefore, the Corporation cannot be held liable for making the payment of compensation. Moreover, in case the Corporation is held liable, then the appellant would be permitted to take the advantage of his own wrong. But, in law, no one can be permitted to take advantage of his own wrong. In rejoinder, Mr. Shah has argued that even if the appellant did not contribute to the Corporation, still the jurisdiction of the learned Commissioner is ousted under Section 53 of the Act of 1948. The lack of contribution is an issue between the Corporation and the employer. Therefore, Mool Chand cannot claim that Section 53 of the Act of 1948 does not bind him. Furthermore, once the appellant is registered with the Corporation, the Corporation cannot absolve itself of the liability to pay the compensation on the ground that the appellant was not making any contribution to the insurance policy. In case, the Corporation was so aggrieved, it could have taken legal action against the appellant. But, it failed to do so. Therefore, the Corporation is absolutely liable for the payment of the compensation. ;