Karnataka High Court
Dr. B. Radhakrishna vs Gouramma And Others on 15 March, 1994
Equivalent citations: [1994(68)FLR1220], ILR1994KAR1064, 1994(2)KARLJ121, (1994)IILLJ584KANT
JUDGMENT G.P. Shivaprakash, J.
1. This appeal is presented by the owner of the building bearing No. 337, 12th Cross, II Block, Thyagarajnagar, Bangalore.
2. The facts of the case in brief are as follows : The appellant had entrusted the work of tile polishing at his newly constructed residential building to a contractor who is the third respondent in this petition. Respondents 1 and 2 are the mother and father respectively of the deceased workman. The third respondent having accepted the work of tile polishing entrusted the execution of the work to the deceased Shivakumar who was his employee. In the course of execution of the work, on 30.1.1990 at about 3.30 p.m., the deceased died due to electrocution.
3. The question that is raised in this appeal is whether the appellant is liable to pay compensation to respondents 1 and 2 who claim to be the dependants of the deceased Shivakumar, under the provisions of the Workmen's Compensation Act, 1923.
4. In the impugned order of the Commissioner, we notice, that the following issues were formulated for determination :
(1) Whether the petitioners (respondents 1 and 2 herein) prove that the deceased Shivakumar was a workman under the respondents (appellant and the third respondent herein)?
(2) Whether the petitioners prove that the deceased Shivakumar died on 30.1.1990 due to the accident in the course of the employment?
(3) Whether the petitioners prove that the deceased Shivakumar was getting wages of Rs. 75/- per day?
(4) Whether the petitioners prove the age of the deceased Shivakumar at the time of the accident?
(5) How much quantum of compensation the petitioners are entitled from respondents 1 and 2 under the provisions of the Act and what orders?
5. The Commissioner has held that the deceased Shivakumar was a 'workman' under the appellant and the third respondent herein. Since there was no dispute regarding the death of Shivakumar on 30.1.1990 while executing the work of polishing the tiles in the aforesaid premises of the appellant, the Commissioner has held that the death of Shivakumar was during the course of the employment.
6. In so far as the wages that was being paid by the third respondent to the deceased Shivakumar, the Commissioner, in view of the fact that no evidence was adduced to prove the actual wages that was paid to the deceased workman, has determined the daily wage of the deceased at Rs. 16 + Rs. 11.28 VDA = 27.27 per day under the provisions of the Minimum Wages Act. On that basis he has held that the monthly wage of the deceased was Rs. 818.40. Regarding the age of the deceased, the Commissioner has held that he was 24 years at the time of his death on the basis of the post-mortem report.
7. On the above findings, the Commissioner has fastened the liability both on the appellant and on the third respondent without giving any reasons for fastening the liability on the appellant.
8. Section 2(1)(e) of the Workmen's Compensation Act, 1923, defines 'Employer' as follows :
"Employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him."
9. In C. E. S. C. Ltd. etc. v. Subhash Chandra Bose & Ors. 1992 I CLR 932 the Supreme Court in a matter arising under the provisions of Employees' State Insurance Act, 1948, has ruled thus :
"In whatever manner the word 'employer' under Section 2(9) be construed, liberally or restrictedly, the construction cannot go to the extent of ruling out the function and role of the immediate employer or obliterating the distance between the principal employer and the immediate employer. In some situations he is the cut-off. He is the one who stumbles in the way of direct nexus being established, unless statutorily fictioned, between the employee and the principal employer. He is the one who is a given situation is the principal employer to the employee, directly employed under him. If the work by the employee is conducted under the immediate gaze or overseeing of the principal employer, or his agent, subject to other conditions as envisaged being fulfilled, he would be an employees for the purpose of Section 2(9). Thus besides the question aforeposed with regard to supervision of the principal employer the subsidiary question is whether instantly the contractual supervision exercised by the immediate employer (the electrical contractors) over his employee was exercised, on the terms of the contract, towards fulfilling a self-obligation or in discharge of duty as an agent of the principal employer."
"14..................... In the ordinary dictional sense "to supervise" means to direct or oversee the performance or operation of an activity and to oversee it, watch over and direct. It is work under eye and gaze of someone who can immediately direct a corrective and tender advice. In the textual sense 'supervision' of the principal employer or his agent is on 'work' at the places envisaged and the word 'work' can neither be construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all times and at each and every step of the work. A harmonious construction alone would help carry out the purpose of the Act which would mean moderating the two extremes. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act. It is the consistency of vigil, the proverbial 'a stitch in time saves nine.' The standards of vigil would of course depend on the facts of each case. Now this function, the principal employer, no doubt can delegate to his agent who in the eye of law is his second self, i.e. a substitute of the principal employer.
10. In the instant case no issue has been framed for determining whether the services of the deceased workman were temporarily lent or let on hire to the appellant by the third respondent and whether the principle employer, i.e., the appellant was supervising the work that was being executed by the deceased workman. There is also no evidence whatsoever that the immediate employer, that is the third respondent, was not supervising or keeping a vigil over the deceased employee while executing the work.
11. In the circumstances, we are of the view that this aspect of the matter requires to be examined in the light of the aforesaid decision of the Supreme Court by the Commissioner. Workmen's Compensation, Division No. 2 Bangalore before fastening the liability on the appellant.
12. Accordingly, we set aside the order dated 31.7.1992 in WCA PC CR 22 of 1990 and direct the Commissioner to permit the parties to file statement of objections/lead evidence afresh on all points that may arise for consideration. The Commissioner will also permit the parties to cross-examine all the witnesses and take into account the report of the Electrical Inspector and pass appropriate orders in accordance with law.
13. The Commissioner shall dispose of the appeal within three months from the date of receipt of a copy of this order. The parties are directed to appear before the Commissioner on 4.4.1994 for further proceedings.