Karnataka High Court
Adichunchungiri Education Trust vs Hemavathi on 10 February, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 7697 of 2015
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 7697 OF 2015 (WC)
BETWEEN:
ADICHUNCHUNGIRI EDUCATION TRUST,
(NOW KNOWN AS ADICHUNCHUNGIRI
INSTITUTE OF TECHNOLOGY)
ADICHUNCHUNGIRI ENGINEERING COLLEGE
CAMPUS,
JYOTHI NAGARA POST,
CHIKKAMAGALURU - 577 102
REPRESENTED BY ITS PRINCIPAL,
SRI.C.K.SUBBARAYA
...APPELLANT
(BY SRI. SOMASHEKAR, ADVOCATE)
Digitally signed by
PAVITHRA B AND:
Location: HIGH
COURT OF
KARNATAKA 1. HEMAVATHI
AGED 23 YEARS
W/O LATE CHANDRU @ CHANDRASHEKAR
2. MASTER ABHI
AGED 4 YEARS
S/O LATE CHANDRU @ CHANDRASHEKAR
3. MASTER DIKSHITH
AGED 2 ½ YEARS
S/O LATE CHANDRU @ CHANDRASHEKAR
RESPONDENTS 1, 2 & 3 ARE
RESIDING AT RAMANAHALLI EXTENSION,
CHIKKAMAGALURU-577102.
RESPONDENT NOS.2 AND 3 ARE MINORS
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MFA No. 7697 of 2015
REPRESENTED BY THEIR NATURAL GUARDIAN
MOTHER RESPONDENT NO.1
4. KARIYAPPA
AGED 61 YEARS,
S/O NAGARANGEGOWDA
SHADI MAHAL ROAD RAMANAHALLI
CHIKKAMAGALURU TALUK-577102.
5. GANGAMMA
AGED 56 YEARS,
W/O KARIYAPPA
SHADI MAHAL ROAD
RAMANAHALLI
CHIKKAMAGALURU TALUK-577102.
6. THE PROPRIETOR
GAYATHRI SHAMIYANA
BASAVANAHALLI MAIN ROAD
CHIKKAMAGALURU TOWN-577102.
MR. PARASHURAM JOSHI.
...RESPONDENTS
(BY SRI. K VENKATE GOWDA, ADVOCATE FOR C/R1, TO R3
AND R4 & R5; R6-NOTICE SERVED)
THIS MFA FILED U/S.30(1)(a) OF EMPLOYEES
COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD
DATED:08.09.2015 PASSED IN ECA NO.24/2014 ON THE FILE
OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE & JMFC,
CHIKKAMAGALURU, AWARDING THE COMPENSATION OF
RS.5,48,964/- WITH INTEREST AT 12% P.A. FROM THE DATE
OF PETITION TILL THE DEPOSIT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 7697 of 2015
JUDGMENT
This appeal is filed under Section-30(1)(a) of the Employees Compensation Act, 1923 (hereinafter referred to as 'EC Act' for brevity) by the appellant - Principal Employer, calling in question the judgment and award dated 08.09.2015, passed in E.C.A.No.24/2014, on the file of the First Additional Senior Civil Judge & JMFC, Chikkamagaluru, (hereinafter referred to as 'the Tribunal/ Learned Commissioner' for brevity) challenging the liability fastened on the appellant.
Brief facts:
2. The appellant - college had arranged a sports meet in the college from 05.01.2007 to 07.01.2007 and in that connection, the sixth respondent herein was entrusted with the job of shamiana, utensils, chairs, flower decoration, mats, focus lights, serial sets and other allied work. The deceased Chandrashekar was an employee of respondent no.6 had fallen down from the building -4- MFA No. 7697 of 2015 belonging to the college, while he was removing the serial wire connection of the decoration lights on the eve of the sports meet held and later succumbed to the injuries.
3. Hence, a claim petition was filed by the claimants under Section-22 of the E.C. Act, claiming compensation from the appellant-principal employer, claiming compensation for the death of the deceased. The Tribunal on appreciating the material on record, allowed the claim petition in part, and awarded a compensation of Rs.5,48,964/-, along with interest at 12% per annum from the date of accident till the date of payment. The Tribunal held respondent No.2 - appellant herein, liable to pay the compensation.
4. Heard arguments of the learned counsel for the appellant and the learned counsel for respondents and perused the materials on record.
5. The learned counsel for the appellant / Principal Employer submitted that the deceased was not workman -5- MFA No. 7697 of 2015 under them, but was workman under respondent No.6-
contractor. Therefore, for the death of the sub-contractor the principal employer is not liable. Further, submitted that the claimant being PW-1 in the course of cross- examination admitted that the deceased was working as sub-contractor under Gayathri Shamiyana. Therefore, the deceased was not workman under the appellant. Hence, submitted that the claim petition filed by the claimants is not maintainable in the absence proof of relationship of employer and employee and as per definition of Section- 2(dd) of EC Act.
6. Further, submitted that if it has been proved that the deceased was employee working in the respondent No.6 contractor, then Section-12 of E.C. Act is applicable. But it is not proved that the deceased was employee working under respondent No.6 - contractor. Therefore, in case of death of sub-contractor, the provisions of the EC Act are not applicable. Therefore, prays to set-aside the judgment and award of the Tribunal -6- MFA No. 7697 of 2015 by allowing the appeal. Further, submitted that the quantum of compensation awarded is on higher side. Therefore, prays to reduce the same.
7. On the other hand, the learned counsel for the respondents / claimants nos.1 to 5 submitted that the deceased has not worked by himself but on the instructions of respondent No.6 - contractor. Therefore, he comes within the definition of 'employee' as per Section- 2(dd) of EC Act. The deceased has not engaged any other person for getting the work done, but the deceased himself was working of removing the electrical light series in the premises of the appellant institution. Therefore, the deceased is employee / workman was working under respondent no.6 for and on behalf of the appellant.
8. The learned counsel for the respondents/ claimants places reliance on the following judgments: -7- MFA No. 7697 of 2015
(i) Judgment of High Court of Madhya Pradesh, Indore Bench, in the case of Champalal vs. Daryavbai And Others1, (hereinafter referred to as Champalal's case for brevity); and
(ii) Judgment of this Court in the case of Divisional Manager, South Central Railway, Hubli vs. Smt.Manjamma And Another2 (hereinafter referred to as Smt.Manjamma's case for brevity);
9. The learned counsel argued that the deceased worked for removing the electrical light serials during sports meet. Therefore, the deceased is to be considered as an employee but entrusted by the contractor - respondent No.6. Therefore, the Tribunal is right in awarding compensation by fastening burden on the appellant as per Section-12 of EC Act. 1 1992 ACJ 160 2 ILR 2012 KAR 5171 -8- MFA No. 7697 of 2015
10. Upon hearing the arguments from both the sides and perusal of the evidence on record, the following substantial questions of law arises:
i) Whether, under the facts and circumstances involved in the case, is it proved that, the deceased is sub-
contractor and hence, the claimants are not entitled for compensation to be determined and awarded under the EC Act?
ii) Whether under the facts and circumstances involved in the case, the Tribunal is correct in determining the monthly wage and quantum of awarding the compensation is correct?
11. The undisputed facts are that the appellant - Principal Employer is running an Engineering College and for conducting sports meet in the college premises, electrical serial lightings was put. After completion of sports meet, for removing the said electrical serial lightings, the appellant had entrusted the work to -9- MFA No. 7697 of 2015 respondent No.6 - contractor. The deceased at the instructions of respondent No.6 while removing the electrical serial lightings slipped from the building fell on the ground and succumbed to the injuries. The Tribunal held that the deceased has worked himself under the respondent No.6 - contractor for removing electrical serial lightings and died and therefore by holding that the deceased was not sub-contractor by getting the work done by others, but he himself worked and during the work he fell from the building and died. Therefore, the Tribunal has categorized the deceased as an 'employee' engaged through respondent No.6 - contractor. Hence, as per Section-12 of the EC Act the liability is fixed on the appellant - principal employer.
12. It is not disputed that the appellant is the principal employer and the appellant has entrusted the work of removing the electrical serial lightings to the respondent no.6 and the deceased at the instructions of respondent No.6-contractor worked himself and died. The
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MFA No. 7697 of 2015claimants being legal heirs who are wife and minor children and parents of the deceased, have invoked the provisions of Employee's Compensation Act, 1923 for claiming the compensation.
13. The primary aspect to be considered is whether the deceased is employee / workman, either worked directly under the instructions of the principal employer or worked through contractor is to be considered. Therefore, the prime aspect is whether the 'employee' as stated under Section-2(dd) of the EC Act worked himself and died / sustained injuries out of and during the course of employment is to be considered.
14. The provisions of the EC Act should not be interpreted too narrowly, so as to debar the employee from compensation. The EC Act is a piece of social security and welfare legislation. Its dominant purpose is to protect the workman / employee and if the provisions of the Act are interpreted too narrowly, it would defeat the object
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MFA No. 7697 of 2015and reasons of the enhancement which the Parliament thought they ought not to have. The intention of the legislature was to make the employer or the insurer of the employer responsible against the loss caused by the injuries or death which had happened, while the workman was engaged in the work. Therefore, the prime aspect is whether the deceased himself has worked as an employee or he got done the work through others by means as subcontractor is to be considered.
15. The Madhya Pradesh High Court in the case of Champalal referred to supra in the very similar stated facts and circumstances, has observed at para-8 as follows:
"8. In the light of the aforesaid judgment it is crystal clear that when a workman even though he may take a contract, i.e., payment in lump sum for the amount of work done, would not cease to be a workman only by virtue of the contract if he agrees to work himself. It is also manifest that if once person agrees to work himself, and works in accordance with the agreement,
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then merely because he gets other persons are controlled and paid by him would not have the effect of treating such workman as a contractor under the law. As such the crucial test is that if a person agrees to work personally then he is a workman, but if he does not work personally and gets the work done from others, then he is an independent contractor. Undisputedly in the instant case, the respondent had agreed to work himself and the accident was also caused because he was also working himself. Therefore, the fact that he also agreed to get assistance of other workers in the contract would not change his position and he shall not cease to be workman only by virtue of entering into a contract to seek the assistance of other workmen also along with his work."
16. Further, this Court in the case of Manjamma referred to supra while interpreting Section-12 of the Employees compensation Act has observed at para-8 as follows:
"8. The main object of enacting Section 12 of the said Act is to secure the compensation to the employees, who have been engaged through the contractor by the Principal Employer for the latter's ordinary part of business. The scheme of Section 12
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of the said Act is intended to secure a workman the right to claim compensation not only against the immediate employer, be it a contractor or sub- contractor, but also against the Principal Employer."
17. Applying the principles of law laid down in the aforesaid judgments and in view of the facts and circumstances and evidence in the present case are considered it is proved that the deceased himself had worked and while doing work of removing the electrical lighting serial at the instruction of respondent No.6 - contractor he fell down and died. The incident occurred in the premises of appellant - college. The appellant had engaged service of respondent No.6 - contractor for putting up of electrical serial lightings for sports meet. These are all undisputed facts proved. The only crucial point to be considered in the present case is whether the deceased is to be considered as sub-contractor or 'employee' / 'workman'.
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MFA No. 7697 of 2015
18. No doubt Section-12 of EC Act is not applicable in respect of death of sub-contractor, but in the present case, the deceased has not got done the work by engaging other persons, but the deceased himself worked and while working died due to employment injuries. PW-1 is the wife of the deceased might have stated in the cross- examination that her husband i.e., the deceased had business by name Chandru Electricals, but the fact remains that the deceased himself had worked under instructions of respondent no.6. There is a broad distinction between the 'workman' and 'sub-contractor'. The former i.e., 'workman' works for himself and the latter i.e., 'sub-contractor' engages other person to get work done or receiving the work as sub contractor. If the deceased without doing work himself had got done work by other person, then the deceased can be categorized as sub-contractor. But here the deceased had not engaged any other persons to get the work done, but the deceased himself while working of removing the electrical serial lightings fell down and succumbed to the injuries in the
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MFA No. 7697 of 2015accident. Therefore, the provisions of Section-2(b) EC Act can be interpreted by making distinction whether the deceased himself worked or he has got the work done by engaging any other persons. Therefore, whereby it is proved in the present case that the deceased had worked himself and he worked under the instruction of respondent no.6 - contractor. This respondent no.6 contractor had received work from the appellant-principal employer and engaged the deceased for work. Therefore, the deceased is to be categorized as 'employee' so as to consider under the EC Act.
19. Therefore, this is correctly appreciated by the Tribunal and came to the conclusion that as per Section-12 of EC Act, above stated the claim can be made either against the contractor or against principal employer. The Tribunal has correctly held that the appellant is liable to pay compensation under the Employees Compensation Act. Therefore, the substantial question of law No.(i) is answered in Negative, holding that the nature of the work
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MFA No. 7697 of 2015done by the deceased is not as 'sub-contractor' work but the deceased himself worked under the instructions of respondent No.6 as the work entrusted by the appellant institutions. Accordingly substantial question of law No.1 is answered.
REGARDING QUANTUM :
20. In the present case, the Tribunal has considered the wage of the deceased as Rs.170/- per day. There is no evidence to prove that the deceased was earning wage of Rs.170/- per day from respondent No.6. Therefore, the monthly wage is to be taken as minimum Rs.4,000/- per month as per Section-4(1)(a) of EC Act. The deceased was aged 26 years old. Therefore, the relevant factor is 215.28. Accordingly the compensation is assessed and recalculated as follows:
Rs.4,000 x 50/100 x 215.48 = Rs.4,30,960 /-
21. Therefore, so far as the quantum of compensation is concerned the judgment and award
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passed by the Tribunal is modified. Hence, the substantial question of law No. (ii) is answered in Negative.
22. Therefore, it is directed that the appellant shall pay compensation of Rs.4,30,960/- as against Rs.5,48,964/- awarded by the Tribunal, along with the interest at 12% per annum from the date of accident until realization of entire amount, as per the judgment of Hon'ble Apex Court in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and Another reported in AIR 1976 SC 222(1). Hence, I pass following:
ORDER
23. Accordingly, I pass the following :
i. The appeal is Allowed in Part.
ii. The impugned judgment and award dated
08.09.2015, passed in E.C.A.No.24/2014, on the file of the First Additional Senior Civil Judge
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MFA No. 7697 of 2015& JMFC, Chikkamagaluru is modified to the aforesaid extent.
iii. The appellant shall pay compensation of Rs.4,30,960/-, along with the interest at 12% per annum, after expiry of 30 days from the date of accident until realization of entire amount.
iv. The excess amount deposited by the appellant shall be refunded, in view of awarding of interest.
v. The amount in deposit shall be transferred to the Tribunal/Commissioner forthwith, for the purpose above stated.
vi. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
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MFA No. 7697 of 2015vii. Draw award accordingly.
viii. No order as to costs.
Sd/-
JUDGE JJ List No.: 2 Sl No.: 13