Taluka Panchayat Mendarda vs Maliben Rukhadbhai on 24 April, 2019

[Cites 16, Cited by 0]

Gujarat High Court

Taluka Panchayat Mendarda vs Maliben Rukhadbhai on 24 April, 2019

Equivalent citations: AIRONLINE 2019 GUJ 156, (2019) 162 FACLR 237, (2019) 3 CURLR 596, (2019) 4 LAB LN 152, 2019 AAC 1892 (GUJ)

1. The appellant no.1 herein- original opponent no.1 Taluka Panchayat, Mendardaand the appellant no.2 herein original opponent no.2 District Primary Education Officer, Junagadh have preferred this appeal with a prayer to quash and set aside the judgment and award dated 10.5.2007 rendered in Workmen Fatal Case No.27/1996 passed by the learned Commissioner, Workmen's Compensation (Labour Court), Junagadh (herein after referred to as "learned Commissioner").

2. Workmen Fatal Case No.27/1996 was filed by legal heirs of one Rameshbhai Rukhadbhai who expired in an accident of collapsing of wall, while undertaking the work of renovating/constructing the wall of the Primary school, Dedakiyali. Respondent no.1 original claimant no.2 Maliben Rukhadbhai is the mother of deceased Rameshbhai Rukhadbhai (herein after referred to as "original claimant no.2") and respondent no.2original claimant no.1 Bhupatbhai Rukhadbhai (herein after referred to as "original claimant no.1") is the brother of deceased Rameshbhai Rukhadbhai.

3. By the impugned judgment, the learned Commissioner awarded a sum of Rs.2,26,380/ to original claimant nos.1 and 2 for the death of Rameshbhai Rukhadbhai and also awarded Rs.56,595/ by way of penalty. The appellants have therefore, preferred the present appeal.

4. After filing the appeal, the appellants have also preferred Civil Application No.6438/2011 (renumbered as Civil Page 2 of 21 C/FA/3624/2007 CAV JUDGMENT Application No.1/2011) under Order XLI Rule 27 of the Code of Civil Procedure, 1908 read with section 30 of the Workmen's Compensation Act, 1923 with a prayer to permit the appellants to produce certificate showing the date of birth of deceased Rameshkumar Rukhadbhai Makwana issued by the Primary School, Dedakiyali and affidavit of Taluka Development Officer in the form of oral evidence as additional evidence.

5. This Court (Coram : Hon'ble Mr. Justice G.B. Shah, as he was then) by order dated 14.10.2011 ordered the Civil Application No.6438/2011 (renumbered as Civil Application No.1/2011) to be heard with the First Appeal No.3624/2007.

6. Brief facts of the case are as under:

6.1 One Rameshbhai Rukhadbhai stated to be aged 18 years, died due to an accident because of collapsing of wall of school belonging to respondent no.3 Gram Panchayat while doing repairing work. Therefore, original claimants no.1 and 2 filed Workmen Fatal case No.27/1996 before the learned Commissioner, Workmen Compensation, Junagadh against the Taluka Development Officer, District Primary Education Officer and Gram Panchayat for claim of Rs.2,26,380/ and also for penalty and interest.

6.2 On service of summons, the appellants herein filed written statements before the learned Commissioner at exh.10 interalia raising the contention that the appellants were not in any way liable to pay Page 3 of 21 C/FA/3624/2007 CAV JUDGMENT compensation as respondent no.3 Gram Panchayat after getting the work order from the appellants was carrying out work as contractor independently of its status as Gram Panchayat. It was further contended that original claimant no.1 Bhupatbhai Rukhadbhai, brother of deceased Rameshbhai Rukhadbhai was a subcontractor who had employed deceased Rameshbhai Rukhadbhai and further that said Bhupatbhai Rukhadbhai is not dependent of the deceased Rameshbhai Rukhadbhai and therefore, they prayed that the application was required to be rejected.

6.3 On 8.2.2006, respondent no.3 Gram Panchayat filed separate reply at exh.31 and denied its liability.

6.4 Respondent no.2 Bhupatbhai Rukhadbhaioriginal claimant no.1 was examined at exh.15, who produced registered notices, postmortem report and panchnama. He was also injured at the time of accident and had filed a separate case and subsequently withdrew the same from the same court. Respondent no.1 Maliben Rukhadbhai, original claimant no.2, mother of deceased Rameshbhai Rukhadbhai, was examined at exh.26 and she also produced registered AD receipts of notices served upon the appellants. On 27.4.2006, Taluka Development Officer, Shri Vaghasia was examined at exh.33 on behalf of the appellants.

Respondent no.3 Gram Panchayat remained absent and their right to lead evidence was closed by the learned Commissioner.

Page 4 of 21 C/FA/3624/2007 CAV JUDGMENT

6.5 Learned Commissioner framed the following issues for determination at exh.12 :

"1) Whether appellant proves that deceased was the workman of the opponents?

2) Whether deceased proves that he applicant met with an accident during the course of the employment?

3) Whether applicants are entitled for compensation? If yes, what amount?

4) Whether opponents have neglected to make payment? If yes, whether they are liable for penalty and interest?

5) What order and award?"

6.6 The learned Commissioner after taking into consideration the deposition of original claimant no.1 Bhupatbhai Rukhadbhai at exh.15 as well as deposition and cross examination of Taluka Development Officer Shri Parbhatbhai Vaghasia at exh.33 and on the basis of documentary evidence produced on record, arrived at a conclusion that the original claimants proved that deceased Rameshbhai Rukhadbhai was a workman of the appellants and respondent no.3 Gram Panchayat. It was also concluded that the deceased met with an accident during the course of employment and is therefore, entitled to compensation of Rs. 2,26,380/. As per the deposition of the claimants no.1 and 2 at Exh. 15 and 26 respectively, learned Commissioner Page 5 of 21 C/FA/3624/2007 CAV JUDGMENT considered the salary of the deceased as Rs.2000/ and took 50% thereof for computation of his income as he was unmarried. Learned Commissioner applied the factor of 226.38 and worked out compensation payable to the claimants at Rs.2,26,380/. Learned Commissioner further awarded penalty at the rate of 25% at Rs.56,595/ under the provisions of the Workmen's Compensation Act, 1923 ("the Act" for short). Learned Commissioner also awarded simple interest at the rate of 9% from the date of accident till the date of actual payment by the opponents therein. Learned Commissioner held the appellants and respondent no.3 Gram Panchayat jointly and severally liable to pay the compensation.

6.7 The learned Commissioner however considering the definition of "dependant" as per section 2(1)(d) of the Act, held that original claimant no.1 Bhupatbhai Rukhadbhai who was brother of deceased Rameshbhai Rukhadbhai, cannot be said to be dependant. The learned Commissioner placed reliance on decision of Orissa High Court in case of the Divisional Manager, New India Assurance Co. Ltd. Rourkela v. Shyam Bahadur Singh and others reported in I.C. 2003 LAB 598 and held that original claimant no.1 is not entitled to any compensation and compensation awarded would be payable only to the mother of deceased Maliben Rukhadbhai, original claimant no.2.

7 Heard learned advocate Ms. Khyati Hathi for the appellants, Page 6 of 21 C/FA/3624/2007 CAV JUDGMENT learned advocate Mr. Amar Mithani for respondents no. 1 and 2 and learned advocate Mr.Dhirendra Mehta for respondent no.3 Gram Panchayat.

8 Learned advocate for the appellants after referring to deposition and cross examination of the Taluka Development Officer exh.33 submitted that Taluka Panchayat and District Primary Education Officer are not liable or responsible in any manner for the accident which took place on 3.2.1996. She further submitted that learned Commissioner seriously erred in awarding the compensation to both the claimants even after holding that original claimant no.1 is not entitled to claim any amount by way of compensation. She also submitted that the learned Commissioner also committed an error in treating original claimant no.2, mother of deceased Rameshbhai Rukhadbhai as his dependant. She submitted that respondent no.3original opponent no.3, Gram Panchayat did not remain present deliberately after filing the written statement to contest the matter, therefore, adverse inference ought to have been drawn against the Gram Panchayat by the learned Commissioner. She further submitted that the appellants are statutory bodies having independent status from Gram Panchayat and therefore, the appellants could not have been held liable to pay compensation to original claimants no. 1 and 2 on death of deceased Rameshbhai Rukhadbhai in view of the provisions of the Act inasmuch as there is no relationship of master and servant between any of the appellants and deceased Rameshbhai Rukhadbhai who was admittedly employed as labourer by the Gram Panchayat as an independent agency. She further submitted that learned Commissioner failed to Page 7 of 21 C/FA/3624/2007 CAV JUDGMENT appreciate that the Gram Panchayat was undertaking the work of renovating/constructing the wall of school as an independent agency and had entered into contract with the Taluka Panchayat to complete such work and therefore, deceased Rameshbhai Rukhadbhai was never employed by any of the appellants. She also submitted that there is no evidence to show that deceased was earning Rs.2000/ per month and therefore, learned Commissioner has erred in taking into consideration the aspect of income earned by the deceased Rameshbhai Rukhadbhai in absence of any independent evidence. She therefore, submitted that the appellants could not be made liable to pay compensation for the accident under the provisions of the Act.

9 Learned advocate for the appellants also submitted that the appellants have filed Civil Application for producing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 1908 read with section 30 of the Workmen's Compensation Act, 1923 to bring on record the birth certificate of deceased Rameshbhai Rukhadbhai issued by the Principal of Primary School, Dedakiyali, which shows that date of birth of deceased Rameshbhai Rukhadbhai was 10.5.1983 and therefore at the time of the accident i.e. on 3.2.1996, deceased Rameshbhai Rukhadbhai was aged 12 years. She therefore, submitted that taking into consideration, birth certificate produced at AnnexureI to the Civil Application, it cannot be believed that deceased Rameshbhai Rukhadbhai had died due to accident since he could not have been employed as labourer either by the Gram Panchayat or any alleged subcontractor or Sarpanch of the village. She submitted that the Gram Panchayat has Page 8 of 21 C/FA/3624/2007 CAV JUDGMENT deliberately not come forward to give any evidence inspite of the fact that Gram Panchayat was in knowledge of the age of deceased Rameshbhai Rukhadbhai. It is further submitted that as this Court has by order dated 14.10.2011 ordered to hear the said Civil Application along with the First Appeal, without passing any further order as to admission of the additional evidence to be taken on record, the same may be taken into consideration as the said fact is not disputed by the advocate for the original claimants. Learned advocate for the appellants therefore, submitted that the appeal is required to be allowed as prayed for by quashing and setting aside the judgment and award dated 10.5.2007 passed by the learned Commissioner.

10 On the other hand, learned advocate Mr. Amar Mithani for the original claimants No.1 and 2 submitted that it is true that the learned Commissioner has given finding to the effect that original claimant no.1 is not dependant as defined under section 2(1)(d) of the Act, however, final order is passed to pay compensation to both the claimants. Section 2(1)(d) of the Act relied upon by the learned advocate for the original claimants read as under :

"(d)" dependant" means any of the following relatives of a deceased workman, namely:

(i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter, or a widowed mother; and

(ii) if wholly dependent on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm;

(iii) if wholly or in part dependent on the earnings of the workman at the time of his death, Page 9 of 21 C/FA/3624/2007 CAV JUDGMENT

(a) a widower,

(b) a parent other than a widowed mother,

(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate or adopted if married and a minor or if widowed and a minor,

(d) a minor brother or a unmarried sister or a widowed sister if a minor,

(e) a widowed daughter in law,

(f) a minor child of a pre deceased son,

(g) a minor child of a pre deceased daughter where no parent of the child is alive, or

(h) a paternal grandparent if no parent of the workman is alive;] He therefore, submitted that the order may be modified so as to pay compensation to original claimant no.2 the mother of the deceased Rameshbhai Rukhadbhai only.

11 With regard to the submission on the ground of non liability of the appellants is concerned, learned advocate placed reliance on section 12 of the Act which 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 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 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 Page 10 of 21 C/FA/3624/2007 CAV JUDGMENT workman 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 workman 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 whom the workman 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 workman from recovering compensation from the contractor instead of the principal.

(4) This section shall not apply in any case where the accident occurred elsewhere than 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."

12 Learned advocate for the original claimants submitted that the appellants have issued the work order to the Gram Panchayat and as per section 12 of the Act, the appellant no.1 Taluka Panchayat and appellant no.2 District Primary Education Officer are both liable to pay compensation under the provisions of the Act. He relied upon the decision of this Court in case of Bai Mani wd/o. Jakhlabhai Hurjibhai v. Executive Engineer, Irrigation Project, Division Sid, Baroda reported in 1986 GLR Vol. 27(1) 325 to point out that under section 12 of the Act, it is clear that the activity carried on by the appellants and the Gram Panchayat is covered by Page 11 of 21 C/FA/3624/2007 CAV JUDGMENT the words "business activity" which has a wider connotation and covers activities which may not be commercial and may include the construction work carried out by them. The legislature has advisedly used the terms "trade and business"

to cover not only commercial activity but also many other activities which would be covered under the term "business".

Therefore, the appellants together with Gram Panchayat are liable jointly and severally to pay the compensation under the provisions of the Act. Learned advocate for the original claimants further relied on decision of this court in case of Manager, Century Minerals & Chemicals v. Koli Gordhan laxmanbhai & anr. reported in 1991(1) GLH 208, wherein following the decision in case of Bai Mani wd/o. Jakhlabhai Hurjibhai(supra), this Court held as under :

"...It is very obvious from the said provisions of Section 12 that when any person in the course of or for the purpose of his trade or business contracts with any other person called a "contractor" for the execution of any work, he shall be liable to pay to any workman employed for the execution of that work, any compensation which he would have been liable to pay if that workman had been immediately employed by him. The facts of the present case would also attract the ratio of the judgment of this court relied upon in the case of Bai Mani v. Executive Engineer, reported in 1986(1) GLR 325. In the said case, the question that arose for the consideration of this Court was as to whether a contractor employed by the Government had engaged an employeeworkman, who sustained injuries and succumbed to the same, during the execution of the work of the Contractor or the Government. The deceased workman, in that case, was engaged by the Contractor of the Government. Government had not directly engaged the deceased workman. Therefore, tthe contention of the State Government in the said case was that the State Government cannot be held liable for the payment of compensation under Section 3 of the Act as it was not the employer. This contention was not upheld. It was held in the said case that the activity carried on by the Public Page 12 of 21 C/FA/3624/2007 CAV JUDGMENT Works Department is the business activity although it cannot be regarded as a trade. The word "trade" means commercial activity but the word "business" has a much wider connotation and covers activities which may not be commercial and may include the construction work carried out by the Public Works Department. The Legislature had advisedly used the terms "trade" and "business" to cover not only commercial activity but also many other activities which would be covered under the term "business". Therefore, it was held in that case that the State Government was also liable for the payment of compensation for the death of workman. In the present case, admittedly, the Company had engaged the Contractor for doing the work relating to the 'trade' and 'business' of the Company. Admittedly, the Contractor had engaged the injured workman. Therefore, the liability for the payment of compensation under Section 3 of the Act would be not only of original opponent No. 1 Contractor but also of original opponent No. 2Company. Therefore, the first contention raised by learned Counsel Mr. Farooqui must fail as it is without any merit."

13 Learned advocate for the original claimants with regard to birth certificate relied upon by the appellants by way of additional evidence sought to be produced on record, has submitted that under the provisions of the Workmen's Compensation Act, there is no embargo on employing a person below the age of 18 years. In support of his submission, he relied upon the following decisions :

i) In case of New India Assurance Company Limited v. Rachalah Basaiah Ganachari reported in 2001 ACJ 2113.

ii) In case of Oriental Insurance Company Limited, Bangalore v. Rathnamma reported in 2001 ACJ 231.

iii) In case of New India Assurance Company Page 13 of 21 C/FA/3624/2007 CAV JUDGMENT Limited v. K. Ramanna reported in 2007 ACJ 644

14 Relying upon the aforesaid judgments, learned advocate for the original claimants submitted that the fact that minor was employed cannot be ignored and if any accident occurs, minor or his legal representatives are entitled to seek compensation. He therefore, submitted that even if additional evidence sought to be produced on record is taken into consideration, will not alter the fact of awarding the compensation to the original claimants under the provisions of the Act.

15 On the other hand, learned advocate for respondent no.3 Gram Panchayat Mr. Dhirendra Mehta submitted that the learned Commissioner has rightly held Taluka Panchayat as jointly and severally liable inasmuch as, as per the written statement filed by the Gram Panchayat, the Gram Panchayat has awarded the work to third party and therefore, deceased Rameshbhai Rukhadbhai cannot be said to be employee of Gram Panchayat. He submitted that Taluka Panchayat has already deposited the amount pursuant to order passed by this Court and the claimants are receiving periodical interest and therefore, no interference is called for in the impugned judgment and award of the learned Commissioner in the interest of justice.

16 Having considered the documentary and oral evidence adduced on record as well as the submissions made on behalf of the respective parties, it is not in dispute that the accident took place on 3.2.1996 wherein Rameshbhai Rukhadbhai, Page 14 of 21 C/FA/3624/2007 CAV JUDGMENT son of original claimant no.2 and brother of original claimant no.1 herein died due to collapsing of wall during the repairing work of Primary school of Gram Panchayat at village Dedakiyali.

17 Learned Commissioner after considering the oral evidence of original claimant no.2 mother of deceased Rameshbhai Rukhadbhai at Exh.26 together with deposition of original claimant no.1brother of deceased Rameshbhai Rukhadbhai at Exh.15, notice issued on behalf of the claimants at Exh.18, panchnama of place of the incident at Exh.21 and deposition of Taluka Development Officer at Exh.33 has come to the conclusion that the original opponents were jointly and severally liable for payment of compensation under the Act to the mother original claimant no.2. However, learned Commissioner in the final order has erroneously awarded the amount of compensation to both the claimants. Therefore, the impugned judgment and award is required to be modified to the effect that the compensation awarded by the learned Commissioner amounting to Rs.2,26,380/ is payable only to respondent no.1 hereinoriginal claimant no.2 Maliben Rukhadbhai, mother of the deceased Rameshbhai Rukhadbhai as she can only be considered as dependant as per the provision of section 2(1)(d) of the Act.

18 With regard to the determination of quantum of compensation payable, learned Commissioner has rightly adopted sum of Rs. 2000/ per month as per the provision of section 4 of the Act and taking 50% thereof by applying factor of 226.38 for 19 years of age, amount of Rs. 2,26,380/ awarded is just and proper and requires no interference by Page 15 of 21 C/FA/3624/2007 CAV JUDGMENT this Court.

19 The submission canvassed by the learned advocate for the appellants with regard to age of the deceased Rameshbhai Rukhadbhai by producing birth certificate by way of additional evidence, will not make any difference in view of decision of Karnataka High Court in case of Rachalah Basaiah Ganachari (supra) wherein Court has held as under :

"6. In view of the rival contentions, now it is to be seen whether the Workmen's Compensation Act is applicable to the children who are engaged for such of the works which are not governed under Schedules A and B of the Child Labour (Prohibition and Regulation) Act, 1986. The scheme of the Workmen's Compensation Act nowhere states that there is a prohibition to employ a child. According to the definition under Section 2 of the Child Labour (Prohibition and Regulation) Act, 1986, 'Child' means a person who has not completed his fourteenth year of the age. Admittedly in the case on hand, the boy was 13 years old. Hence, he was a child as on the date of the accident. But Section 3 of the same Act clearly states that a child may be employed for each of the works which are not covered under Parts A and B. To make it very clear, Section 3 is reproduced:

'3. Prohibition of employment of children in certain occupations and processes.No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on:

Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from Government'.

7. Section 3 also makes it further clear that a child should never be employed. A check is that a child cannot be employed for such Act which comes under Parts A and B. Page 16 of 21 C/FA/3624/2007 CAV JUDGMENT In view of Section 3 and in the absence of any specific prohibition under the Workmen's Compensation Act, it can be very well held that child can be employed to carry out the work provided this work does not come under the Parts A and B of the Schedule of the Child Labour (Prohibition and Regulation) Act, 1986.

8. It is an admitted fact that there is an amputation of the right hand at the shoulder joint. So, the disability is 90%.

Hence, the Commissioner has awarded the compensation of Rs. 81,496/. There are no grounds to interfere with this award. Hence the following order:

9. In the result, the appeal stands dismissed."

The aforesaid decision is followed by Karnataka High Court in case of Oriental Insurance Company Limited, Bangalore v. Rathnamma (supra) and in case of New India Assurance Company Limited v. K. Ramanna (supra).

20 Even otherwise on plain reading of section 3 of the Act, it fixes on every employer, liability to pay compensation to his workman in respect of any injury suffered or death caused during the course of employment. Section 3 of the Act insofar as it is relevant reads as under :

"3(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter."

21 Therefore, all the opponents i.e. Taluka Panchayat, District Primary Education Officer as well as Gram Panchayat are responsible and liable for payment of compensation inasmuch as Workmen's Compensation Act is a Social Welfare Legislation and interpretation of the provisions of the Page 17 of 21 C/FA/3624/2007 CAV JUDGMENT Act, Rules and Schedule should be made so as to advance the objects of the Act. Section 2(n) of the Act defines 'workman' as under :

"(n) " workman" means any person who is

(i) a railway servant as defined in clause 34 of section 2 of the Railways Act, 1989 (24 of 1989) not permanently employed in any administrative, district or sub divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ia) (a) master, seamen or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) as person recruited for work abroad by a company and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company as the case may be is registered in India or;

(ii) employed in any such capacity as is specified in Schedule II. whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them."

22 On perusal of the aforesaid provision, it is crystal clear that no age limit is prescribed so far as definition of the workman is concerned for employment. A plain reading of the aforesaid provision defining workman, clearly shows that intention of the legislature is to include persons below age of 15 also Page 18 of 21 C/FA/3624/2007 CAV JUDGMENT under the category of workman. This fact is further fortified from the ScheduleIV which prescribes the factors where minimum factor is for age of not more than 16 years. Thus when the provisions of the Act do not expressly or impliedly exclude that no compensation is payable to a person who is below age of 16 years and section 3 of the Act does not make liability of the employer to be dependent on the age of the workman, therefore, there is no need to allow the civil application filed for producing additional evidence in the form of birth certificate of deceased Rameshbhai Rukhadbhai as it would not alter in any manner the liability for payment of compensation to the workman under the provisions of the Act. Civil Application is therefore, required to be rejected and is hereby rejected.

23 With regard to submission of learned advocate for the appellants that the appellants are not liable for payment of compensation to the workman, as deceased Rameshbhai Rukhadbhai cannot be said to be workman of the appellants, for the appellants cannot be considered as employer in any manner as the appellants have awarded contract to respondent no.3 Gram Panchayat which has carried out construction, it cannot be stated that there can be no liability of the appellants under the Act. On plain reading of section 3 together with section 12 of the Act and as held in case of Bai Mani wd/o. Jakhlabhai Hurjibhai and Manager, Century Minerals & Chemicals (supra) which is squarely applicable to facts of the case as under section 12 of the Act, it is clear that the activity carried on by the appellants and the Gram Panchayat is covered by the words "business activity" which has a wider connotation and covers activities which may not Page 19 of 21 C/FA/3624/2007 CAV JUDGMENT be commercial and may include the construction work carried out by them. The legislature has advisedly used the terms "trade and business" to cover not only commercial activity but also many other activities which would be covered under the term "business". The learned Commissioner has therefore, rightly arrived at the conclusion that the appellants herein and respondent no.3 are jointly and severally liable for the amount of compensation payable under the Act to the claimants.

24 For the forgoing reasons, the appeal is rejected. However, impugned judgment and award is modified to the extent that appellants Taluka Panchayat and District Primary Education Officer and respondent no.3 Gram Panchayat are jointly and severally liable to pay compensation of Rs.2,26,380/ with interest at the rate of 9% to the respondent no.1 - original claimant no.2 Maliben Rukhadbhai, mother of deceased Rameshbhai Rukhadbhai only. So far as the penalty imposed by the learned Commissioner to the extent of 25% of the compensation amount i.e. Rs.56,595/ also does not require any interference and same is confirmed. Appellants have already deposited the amount of compensation with the trial Court as per the order passed by this Court in Civil Application No. 10053/2007 (renumbered as Civil Application No.1/2007) and same has been ordered to be invested in fixed deposit in a nationalized bank and claimants are receiving periodical interest. The trial Court is directed to pay the said amount of Rs.2,26,380/ together with accrued interest thereon to respondent no.1 original claimant no.2, Maliben Rukhadbhai by Account Payee cheque after due verification within four weeks from the date of receipt of a Page 20 of 21 C/FA/3624/2007 CAV JUDGMENT copy of writ order of this Court. R&P may be transmitted back to the concerned trial Court.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 21 of 21

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