Kerala High Court
Malankara Rubber & Produce Co. Ltd. vs Hameed on 28 January, 2000
Equivalent citations: [2001(91)FLR84]
JUDGMENT R.Rajendra Babu, J.
1. This appeal is at the instance of the first opposite party the Malankara Rubber & Produce Co. Ltd. in W.C.C 91/93 before the Court of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Ernakulam, Respondents 1 and 2, the applicant in W.C.C. 91/93 are the parents of one Basheer who died in an accident occurred in the factory building in the rubber estate owned by the appellant. The 3rd respondent herein, the contractor was the 2nd opposite party in W.C.C. 91/93. The applicants filed the application under S. 22 of the Workmen's Compensation Act as their son Basheer met with an accident and succumbed to the injuries arising out of and in the course of his employment under S. 22 of the Workmen's Compensation Act as their son Basheer met with an accident an succumbed to the injuries arising out of and in the course of his employment under the 3rd respondent was directed to reimburse the appellant. Aggrieved by the above order, the 1st respondent in W.C.C. 91/93 had come up in appeal.
2. The appellant, a Public Limited Company was owning a rubber estate by name Malankara Estate at Thodupuzha and was engaged in the manufacture and the business of rubber in Kerala. The appellant entered into an agreement with the 3rd respondent in February, 1991 for the fabrication and erection of a structure close to the existing rubber factory at the estate. The 3rd respondent engaged its own workers for the above work and deceased Basheer was one of the workers engaged by the 3rd respondent. On 23.4.91 while Basheer was engaged in tying stay wire for the erected pillar, sustained injuries in an accidental fall from the top and succumbed to the injuries. The parents of deceased Basheer filed an application before the Workmen's Compensation Court claiming compensation. The appellant contended that the appellant company entered into an agreement with the 3rd respondent herein for fabrication and erection of a steel structure close to the existing rubber factory and deceased Basheer was a worker under the 3rd respondent and that the accident occurred because of the negligence on the part of deceased Basheer carelessly placing his foot on a loose asbestos sheet of the nearby factory roof and he slipped, lost his grip and fell on the ground. Even though ladder for climbing, safety belt and hook were provided to the construction workers, Basheer did not care to use any of them, and thus the accident was solely due to his own negligence. It was further contended that S.12 of the Workmen's Compensation Act had no application and the appellant was not the principle employer and extension of the factory building was not part of the trade of business of the appellant and disputed the liability to compensate.
3. The 2nd opposite party, the 3rd respondent herein attempted that the appellant had entrusted them with the work of fabrication. But he had entered into an agreement with one Sulaiman for the execution of the fabrication work. As per the above agreement, Sulaiman was required to arrange personnel needed for the work and he had to make payments to meet other statutory obligations. Deceased Basheer was under the employment and control of the above Sulaiman and the 3rd respondent had no connection with the deceased. It was further contended that the compensation if any, had to be met jointly by the appellant as well as Sulaiman, and that the accident was due to the negligence of deceased Basheer who had not taken any precautionary measures to avoid the accident.
4. Evidence was let in by both sides. After hearing both sides, the Workmen's Compensation Court held that there was no evidence that Sulaiman had actually executed the work at the premises of the appellant and the deceased was an employee of Sulaiman. It was further held that the 3rd respondent was the contractor and employer of the deceased and the appellant was the principal employer and that the extension of the factory was for the expansion of the production facilities and thus it was connected with the trade or business of the appellant and hence the appellant was liable to compensate as the principle employer.
5. Heard the learned counsel for the appellant and the respondents.
6. The learned counsel for the appellant argued that extension of the factory building was not the trade or business of the appellant and as such S. 12(1) of the Workmen's Compensation Act cannot have any application. It was further argued that the trade or business of the company was production of rubber and sale of the same in the market and the work relating to the extension of the factory of the Malankara Estate, was entrusted with the 3rd respondent and any part or any work which was ordinarily part of the trade or business of the company was not entrusted with the 3rd respondent. Admittedly, the fabrication and erection of steel structures close to the existing rubber factory was entrusted with the 3rd respondent the contractor. basheer, an employee who was engaged in the above work met with an accident and succumbed to the injuries. The Workmen's Compensation Court found that the deceased Basheer was an employee under the 3rd respondent and the above finding on fact was not at all challenged. Admittedly, the 3rd respondent was a contractor under the appellant for the works in connection with the extension of the factory of the appellant.
7. The learned counsel for the appellant argued that S.12 of Workmen's Compensation Act cannot have any application in the present case. It would be beneficial to consider S.12(1) of the Workmen's Compensation Act, which reads:
"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) of 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 reference 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."
The scope and ambit of S. 12(1) had been considered by this Court as well as by other High Courts. A Division Bench of this Court in Vijayaraghavan v. Velu (1973 KLT 333) considered the scope and object of S. 12, There Subramanyan Poti, J. as he them was held:
"The scheme of S.12 of the Workmen's Compensation Act, 1923 is intended to secure to a workman the right to claim compensation not only against his immediate employer who, in the Act is referred to as a contractor, but also against the person who had employed such contractor to execute the work which is ordinarily part of the trade or business of such persons. The Act refers to him as the principal. There may be cases where the contractor may not be a man of means or it may be that willingly or unwillingly he may possibly be part of an arrangement conceived by the principal to avoid confrontation directly with the workmen engaged in the execution of the work. In either case the interests of the workman needs to be protected and that is what the provision secures to him. The principal can seek to be indemnified by the contractor if he has been made answerable for the payment of compensation. But to invoke the provisions of the section it is necessary that the accident should have occurred on, in or about such premises as on which the principal has undertaken or usually undertakes to execute the work or premises which are otherwise under his control."
That was a case where the principal entered into an agreement with the railway for the supply of metal to the Southern Railway. The principal entered into an agreement with a contractor for the supply of metal to him at a specified rate. The contractor engaged a worker (Narayanan) met with an accident and died. The parents of deceased Narayanan preferred a claim before the Workmen's Compensation Court against the principal as well as the contractor. There it was held that any person who undertakes to supply metal ordinarily gets the metal extracted from a quarry so that quarrying is really a part of the business of supply of metal and in almost all cases it is so inextricably connected with the supply of metal. Accordingly the principal was found liable for compensation and the contractor was liable to indemnify the principal. In Superintendent, Lokhart Estate, Devikolam v. Kaliappan (1976 (1) LLJ 354) a Division Bench of this Court considered whether the construction of cooli-lines for the estate workers were part of the business of running a tea estate. There the tea estate engaged one Vakko for the purpose of constructing cooli-lines in the estate for the occupation of its workers. In the course of the work, two workers sustained injuries and one succumbed to the injuries. There the estate raised a contention that the construction of cooli-lines was not the business of the estate and the estate was engaged only in the production and manufacture of tea and the same was the main activity of the estate and the construction of cooli-lines for the purpose of housing the workmen cannot be said to be part of the business or trade of the estate. There it was held:
"It cannot be accepted that the construction of cooli-lines is not part of the business of the principal (the estate). S.15 of the Plantations Labour Act, 1951 obliges every employer to provide housing accommodation to the workers. It is a statutory duty. In discharge of such duty, the employer may himself construct the houses or he may do it through a contractor. Tea can be grown in a tea-estate and an estate can be run only in accordance with the regulations and one of the regulations is to provide quarters to the workers. Even if there is no statutory obligation, if it is the usual requirement of the business or a term of the employment, then the work, such as the construction of cooli-lines, would be part of the business of the employer. If that be so, the consequences cannot be avoided by entrusting the work to a contractor."
In Koodalingam v. Supdt. Engineer 1994 (2) KLT 413, a Division Bench of this Court held that the provisions in S.12(1) would apply notwithstanding the agreement or contract entered into between the principal and contractor regarding their liability for payment of compensation under the Act, so long as the Section has not been made specifically subject to pay contract to the contrary. That was a case where a claim for compensation was made for the death of a workman employed by the contractor for getting project undertaken by the Public Works Department in the course of its business. There it was held that the Superintending Engineer begin the principal employer was liable under S.12(1) of the Act to compensate the death of the workman of the contractor.
8. The meaning of the words 'business' and 'ordinarily' used in S.12(1) had been considered by a Bench of this Court in Payyannur Educational Society v. Narayani (1995 (1) KLT 621). That was a case where two workmen while negaged in a land escalating operation were buried alive due to landslide. The legal heirs of those persons filed claims before the Workmen's Compensation Court. The owner of the land a registered educational society raised a contention that the workers were not employed by the Society, but they were recruited by a person to whom soil was sold at a rate of Rs. 15 per load. In holding that the Society was the principal employer, it was held:
"We do not think the word "business" in the section need be restricted to what is synonymous with trade. The use of the conjunction "or" should be understood as disjunctive for covering totally different areas unconnected with "trade". A reference to the Dictionary would reveal that the word "business" had different shades of meanings. Among them the most suitable in the present context is that which "The Oxford Advanced Learners Dictionary of Current English" has given as its third meaning: "Task, duty, concern or undertaking to do a work". Some succinct illustration have also been given in the said dictionary to drive the meaning home. They are: "It is a teacher's business to help his pupils; I still make it my business to see that money is paid promptly: that is no business of yours". In none of the illustrations the word "business" is used to denote anything connected with trade or commerce. The word business used in S.12 of the Act has been intended to convey the meaning as the work or task undertaken by the person concerned which are not restricted to trade or commercial work alone. The word "ordinarily" is an elastic term. It is seen used in different statutes. The word has different shades of meaning in different contexts. The word "ordinarily" is employed in S.12 of the Act for a different connotation. That has to be understood in the background of the preceding portion in the section wherein execution of the work carried out through any other person contracted by the principal of this purpose is mentioned. What the principal would have done if he has not contracted with another person to carry out that work. He himself would have normally done that work or caused it to be done under his supervision. The word "ordinarily" as it appears in the section".
9. We find no merit in the contention raised by the appellant that the appellant company cannot be treated as the principal employer. The word business used in S.12 has various shades of meanings. The work undertaken by the contractor was in respect of the expansion of the factory building in the premises to the appellant. The expansion of the factory building was a usual requirement incidental for the expansion of the business. The expansion of the factory being connected with the expansion of the business of the employer would have been done by himself or under his supervision if he had not contracted with another. As the work undertaken by the contractor was in respect of the expansion of the business of the company, and the accident occurred in the factory premises under the control of the appellant, where its business was carried on the appellant was the principal employer liable to compensate the death of the worker, viz., Basheer under S. 12(1) of the Act. The Workmen's Compensation Court was fully justified in holding that the appellant was the principal employer and that S.12 of the Act was applicable. Hence this appeal has only to be dismissed and the order of the Workmen's Compensation Court to be upheld.
In the result of this appeal is dismissed. No costs.