Delhi High Court
Commandant, Army Base Workshop & Anr. vs Smt. Amrita Devi & Ors. on 9 May, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.460/2012
% 9th May, 2014
COMMANDANT,
ARMY BASE WORKSHOP & ANR. ..... Appellant
Through: Mr. R.V. Sinha, with Mr. R.N. Singh, Advocates
Versus
SMT. AMRITA DEVI & ORS. ..... Respondent
Through: Mr. D.D. Singh, with Mr. Navdeep Singh, Advocates for
R-4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The first appeal is filed under Section 30 of the Employees' Compensation Act, 1923 (in short "the Act") against the impugned judgment dated 31.05.2012 which was allowed by the claim petition filed by the respondents no.1 and 2 herein, and who are the dependants of the deceased Mr. Vijay Kumar Giri, aged 28 years, Vijay Kumar Giri died on 14.03.2001 in an accident of fall from the roof where he was working.
2. The Commissioner by the impugned judgment has held that in view of the affidavit filed by the appellant through its Col. Raj Pal Singh, it is FAO 460/2012 Page 1 of 4 admitted on record that the deceased Mr. Vijay Kumar Giri was working at the building of the appellant at 505 Army Base Workshop Delhi Cantt on 14.03.2001 when he suffered injuries in an accident on account of fall from the roof, and consequently died.
3. Once all the aforesaid aspects are admitted facts, the Commissioner has rightly applied the provision of Section 12 of the Act which however is not specifically mentioned in the judgment. Section 12 of the Act 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 *[employee] employed in the execution of the work any compensation which he would have been liable to pay if that *[employee] 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 *[employee] 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 *[employee] 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 FAO 460/2012 Page 2 of 4 whom the *[employee] could have recovered compensation] and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.
(3) Nothing in this section shall be construed as preventing a *[employee] 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."
4. A reading of the aforesaid Section 12 shows that the person at whose place an employee of another employer is working, then the person at whose place where the work is being carried out is the principal and such principal becomes the deemed employer of the employee although the employee is employed by the parent employer. The principal or the deemed employer after paying compensation to the employee, is entitled to be indemnified by the actual employer of the employee i.e. the principal can recover the amount which is paid to the employee from the parent employer.
5. In view of the aforesaid legal position and the affidavit of the appellant itself filed through Col. Raj Pal Singh, before the Commissioner, the counsel for the appellant confines the relief in this appeal to recover the amount of the compensation from the parent employer who is respondent no.1 before the Commissioner and respondent no.3 herein i.e appellant FAO 460/2012 Page 3 of 4 claims indemnification so that the appellant can adjust any amount lying with it of the respondent no.3 herein for the compensation which the appellant has to pay to the respondent nos.1 and 2 as per the impugned judgment.
6. Since as per sub Section 2 of Section 12, appellant is entitled to be indemnified including by adjusting with it any amounts of the respondent no.3 which is lying with the appellant, or if there are no moneys of the respondent no.3 with the appellant, then, the appellant can always recover the amount which is/was paid under the impugned judgment from the respondent no.3 and hence I accordingly give such entitlement to the appellant.
7. The appeal is disposed of in terms of the aforesaid observations, leaving the parties to bear their own costs.
MAY 09, 2014 VALMIKI J. MEHTA, J.
ss
FAO 460/2012 Page 4 of 4