-1- ECA Case No.

C­5/2009

BEFORE THE COMMISSIONER, UNDER EMPLOYEES

COMPENSATION ACT, 1923, FORTH LABOUR COURT, AT NAGPUR.

ECA Case No. C­05/2009 Ex. ____

1. Shaikh Mohd. S/o Sk. Ibrahim

Aged about 55 years Occ­ Nil

2. Smt. Mumtazbee w/o Shaikh Mohd.

aged about 50 Yrs. Occ­ Nil

3. Mohd. Shakil s/o Shaikh Mohd.

aged about 16 Yrs. Occ­ Student.

Applicant no. 3 is minor through next guardian

R/o Garib Nawaz Chauk , Hasanbag

Nagpur. ….... Applicants.

­VERSUS­

1. M/s KSL Industries Ltd.

Through its Prop./ President/ Director
Site office at Gate no. 4,
Empress Mill Compound, Shukarwari
Talao, Cotton Market, Nagpur.

2. Shri Ravish Gawali

Aged ­ major Occ­ Contractor,
R/0 Plot No. 112, Janta Society,
Ramkrushna Nagar, Dighori, Nagpur.

3. Reward Real Estate Co. Ltd.

Through its Authorised Signatory
Empress City, Empress Mill no.4 , Sir Bezonji,
Mehta road, Nagpur­18 ….... Non­applicants.

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CORAM :­ M. K. RAMTEKE, I/c Commissioner.

Appearances :­ Shri P. D. Naukarkar Adv. for the applicants.

Shri Patil Adv. for the Non­applicant­1 & 3
Shri Raut Adv. for the non­applicant no.2

J U DG ME NT
(Delivered on 16/1/2014)

1. Applicants files this application under Section 22 of the

Employees Compensation Act, 1923, for determination of the
compensation amount on causing death of deceased Mohd. Sajid
arising out of and in the course of employment.

2. The case of the applicants that late Mohd. Sajid is the son of
applicant no. 1 and 2. Applicant no. 3 is the minor brother of the
deceased Mohd. Sajid. Deceased was the only earning member of the
applicants family. Applicants were dependents upon the deceased.

3. The case of the applicants that deceased was engaged by

non­applicant no. 2 along with other workers at the site Empress City,
Nagpur. The land called as Empress City is situated near area of Cotton
market , Nagpur, was purchased by the non­applicant no.1. The non­
applicant no. 1 carrying the construction of building , residential
structure as well as commercial structure and for doing work of
construction, there were engaging of contractors by the non­applicant
no. 1 for different works. The work of glass fitting to the windows and
doors was given to non­applicant no. 2 as a contractor by non­
applicant no. 1. The non­applicant no. 2 is the expert person in doing

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such nature of work. The non­applicant no. 2 is having a labour

contract licence for running the work. There was an agreement
between the non­applicant no. 1 and 2 in doing the work of placing the
fitting of the glass and alluminium windows.

4. The non­applicant no. 2 engaged to deceased Mohd. Sajid

and others for doing the work of fitting of alluminium windows and
glass in construction. He was engaged by non­applicant no. 2 prior to
8 months of his accident. Along with deceased some other workers by
name Sachin Dhule, Raju Chaudhary and Irfan were also working.
On the day of accident, deceased was below 18 years. However, due to
weak financial condition, he was working with non­applicant no.2.

5. It is submission of the applicants that on 1.2.2009 deceased

and other workers entered in the premises of the Empress City at about
10 a.m. The entry was made by them under gate pass. The work of
glass fitting and alluminium windows fitting was started by the
deceased and other workers under the direction of non­applicant no.2.
In between of 11 a.m. to 12 noon, Truck bearing registration no. MP­
04­K­6815 entered in the premises of Empress City with loaded glass. It
was parked in the premises of Empress City. In unloading of the glass
packages from this vehicle, there were no labour available. Hence,
non­applicant no.2 directed to the workers along with deceased for
unload of the glass packages from the truck. Deceased was below 18
years and therefore, he refused to work. However, on insist by non­
applicant no. 2 , he was doing the work. While unloading of the glass
package bundle , it fall on the body of the deceased and other labours.

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Due to it, heavy and sharp edged glass inserted in the body of the
deceased. It resulted in causing serious injuries to the deceased and
thereby deceased died on the spot. While unloading, the truck was
parked inbalance condition. Thus, while unloading such, accident
was took place. This accident was took place arising out of and in the
course of employment with the non­applicant no. 2 of the deceased.
On causing of accident, offence was registered against non­applicant
no. 1 , 2 and 3 with police station, Ganeshpeth, Nagpur.

6. On the date of accident deceased was aged about 17 years.

The applicants claimed minimum wages for the construction work as
prescribed by the Government of Maharashtra. At relevant time of
accident, minimum wages was Rs. 4750/­ and D.A. of Rs. 701/­ The
average monthly salary of the deceased was Rs. 5451/­. According to
applicants, daily rate wages of the applicant is of Rs. 181=70/­ as per
Minimum Wages Act at that time. On the basis of age of 17 years,
relevant factor comes to 227.49. The ceiling limit on consideration of
the wages comes to Rs. 4000/­ and 50% of it, is Rs. 2000/­. On the
basis of relevant factor and ceiling limit of salary, applicants claims Rs.
4,54,980/­. The applicants also claims funeral expenses of Rs. 2500/­
against non­applicants. In all of Rs. 4,57,480/­ claimed by the
applicants towards compensation.

7. The applicants by way of amendment submitted that non­

applicant no. 1 had given the work of glass fitting, door fitting, window
fitting to the non­applicant no.3. The non­applicant no. 3 is sister
concerned of the non­applicant no.1. The non­applicant no. 3 had

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given the contract of such nature of work to non­applicant no.2. Non­

applicant no. 2 have engaged to the deceased. Hence, non­applicant
no. 1 being principal employer and non­applicant no. 2 & 3 being a
contractor are jointly and severally liable in paying the compensation.
On causing of accident, there was no depositing of the compensation
amount by the non­applicants. Hence, applicants have claimed
interest on compensation amount @ 12% p.a. and also penalty to the
extent of 50% . Thus, application.

8. Non­applicant no. 1 filed written statement at Ex. 10 and

resisted the claim of applicants. Non­applicant no. 1 denied the claim
of applicants. According to non­applicant no. 1, application of the
applicant is false and frivolous. The claim of the applicant is vexatious.
There was no joining of the proper person representing to non­
applicant no.1. On this count, non­applicant no.1 claims dismissal of
the application for non joinder of necessary party. There is also denial
raised by the non­applicant no.1 of engaging to deceased Mohd. Sajid
by non­applicant no. 2 for doing the work. There is also denial raised
by the non­applicant no. 1 that deceased was working with non­
applicant no.2 prior to his accident of 8 months continuously. There
was no engaging to deceased at any time as a permanent labour or
casual labour by non­applicant no. 2. There was no any issuance of
gate pass to the deceased by non­applicant no.1. Therefore, causing of
accident is denied by the non­applicant no.1 arising out of and in the
course of employment.

9. The non­applicant no. 1 denied dependency of the

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applicant as well as earning for them by deceased. The salary and age
factor is also disputed by non­applicant no.1. The non­applicant no. 1
never acted as a principal employer for the deceased. There was no
engaging to deceased by non­applicant no. 2. Hence, relationship as
employer and employee does not exist between non­applicant no. 1
and 2 with deceased. Thus, claim of the applicant is not
maintainable.

10. In addition to denial the claim of applicants, there is

submission of the non­applicant no. 1 that an amount of Rs. 75,000/­
was deposited by it under protest with this authority. Therefore, the
applicants are not entitled to the claim as claimed by them. Thus,
claim of the applicants shall be dismissed.

11. Non­applicant no. 2 filed written statement at Ex. 16 and

resisted the claim of applicants. Non­applicant no. 2 submitted that he
is supervising the work of non­applicant no. 1 on contract basis.
However, he denied work carried out by him under contract with non­
applicant no. 1. There is denial by him of the contract in doing the
work for non­applicant no. 1. There is also denial raised by the non
­applicant no. 2 of engaging to deceased on work. There is no existence
of relationship as employer and employee with him and applicant.
There was no any direction given by him to unload the glass packages
brought in the premises of the Empress City in truck, Causing of
accident of deceased and other worker by name Sachin Dhule and
causing his death also denied by him. There was no work allotted to
deceased, nor, engaged to deceased by him for fitting of the

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alluminium window and glasses. Hence, for want of relationship of

employer and employee , claim of the applicants is not maintainable,
in claiming causing of accident arising out of and in the course of
employment of deceased. There is also denial raised by the non­
applicant no. 2 regarding entry of deceased in the premises of Empress
City. The age factor as well as salary is also denied by the non­
applicant no.2 and claims for dismissal of the application.

12. Non­applicant no.3 files written statement at Ex. 66 and

resisted the claim of applicants. Non­applicant no.3 totally denied the
claim of applicants. It also denied having concerned with non­
applicant no. 1 being a sister concerned of it. There is also denial
raised by it of doing the work for non­applicant no. 1 and having
contract of work with non­applicant no. 2. Therefore, relationship in
any way does not exist with deceased of this non­applicant no.3. Thus,
non­applicant no. 3 claims for dismissal of the application.

13. On submission of the parties, my learned predecessor

framed issues at Ex. 13. I recorded findings thereupon as under ;

ISSUES FINDINGS
1. Whether applicant prove that he was in
employment of the non­applicant and injured/
died during and in the course of employment ? …..... Yes.

2. Whether the applicant is entitled for the relief

as prayed ? …...Partly affirmative.

3. What order ? …..... As per final order.

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REASONS

14. ISSUES NO. 1 :­ In support of case, on­behalf of applicants

Shaikh Mohd. Sh. Ibrahim files his evidence on affidavit at Ex.14 and
recorded his evidence. He was cross­examined by non­applicant no. 1
to 3. In support of defence, on bahalf of non­applicant no. 1 witness by
name Ajay Bhoyar, Manager of the non­applicant no. 1 files his
evidence on affidavit at Ex. 67 and recorded his evidence. He was
cross­examined by the applicant as well as non­applicants.

15. On behalf of non­applicant no. 2 witness by name Ravish

Gavali recorded his evidence on affidavit at Ex. 88. This witness was
also cross­examined by the non­applicants as well as by applicant.

16. The evidence of Smt. Sandhya Dwivedi was recorded at

Ex.100. she recorded her evidence for non­applicant no.3. This witness
was also cross­examined by the applicant as well as other non­
applicants.

17. Pursis is filed by the non­applicant no.3 at Ex.102 stating

that it is not willing to record cross­examination of the witness of
applicant by name Shaikh Mohd. Sk. Ibrahim.

18. The evidence recorded by the parties is perused by me. I

have gone through the pleadings of the applicants as well as defence of
the non­applicants. I have gone through the documents filed on
record.

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19. In this application, applicants have claimed that they are

the dependent and successor of the deceased. Applicant no. 1 & 2 are
the parents of the deceased and applicant no. 3 is the minor brother of
the deceased. In evidence this fact have been deposed by the
applicant Shaikh Mohd. This relationship is not disputed by the non­
applicants by way of cross­examination to this witness. The evidence
also disclosed of this witness Shaikh Mohd. that they were dependents
upon the deceased. Thus, successor and dependency is came on
record. No adverse evidence is recorded by any of the non­applicants
in denying this facts. Thus, I held that, applicants were the dependence
as well as successor to deceased.

20. On proving of the facts dependency and successor by

applicants, they claimed causing of accident arising out of and in the
course of employment of deceased. In proving of this fact, the
evidence of the applicant Shaikh Mohd. disclosed that land situated in
cotton market was purchased by the non­applicant no.1, in building
construction thereupon hotel and shopping mall was developed in the
name of Empress City by non­applicant no.1. In development of this
construction, non­applicant no. 1 appointed non­applicant no. 2 as a
contractor for supply and fitting of the glass and alluminium windows.
Alluminium windows and glass have to be used for fitting to the door
and windows in construction work. Non­applicant no. 2 is having the
contract as well as licence for this work. There was a written contract
between non­applicant no.1 and 2 for doing this work. Non­applicant
no. 2 was paying the wages to deceased Mohd. Sajid. His evidence also
disclosed that in carrying the work of glass fitting and alluminium

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fitting , deceased Mohd. Sajid was engaged along with other workers.
Other workers were by name Sachin Dhule, Raju. Chaudhary and Irfan.
Deceased Mohd. Sajid and Sachin Dhule were engaged by non­
applicant no. 2 for non­applicant no. 1 in doing the work and they were
engaged prior to 8 months of causing accident and were continuously
worked till the date of accident. The gate pass was also given to
deceased Mohd. Sajid and other workers along with Sachin Dhule by
non­applicant no. 2 in entering of the premises. The fact of engaging
by non­applicant no. 2 though not witnessed by the applicant but, his
evidence disclosed about this fact. Same is stated by him on oath.
Moreover, documents are filed on record by him at Ex. 18 list.
Document at Ex. 19 is the chargesheet. On reading of the chargesheet,
primafacie facts came on record that non­applicant no. 1 to 3 involved
in causing the accident of deceased Mohd Sajid and therefore offence
under Section 304­A, 338, 34 of the I.P.C was registered against all
present non­applicants. The gist of the chargesheet appears that all
non­applicants with their collusion permitted to allow for work and
acted negligence in manner and thereby resulted in causing accident.
The fact also appears in chargesheet that deceased was not expert in
doing the work, which was forcefully asked to him by the non­
applicants. In accident two persons were dead including Mohd Sajid.
FIR at Ex. 20 filed on record have appears the facts that the accident
was took place in the premises of non­applicant no. 1. Ex. 21 is the
complaint given against the non­applicants for causing accident to
police. Spot panchanama prepared by police at Ex. 22, appears that
the accident was took place in the premises and while working by
deceased with non­applicants. Statement of the independent

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witnesses was also recorded by the police in investigation. Ex. 23 is the

statement of Shri Raju Manikrao Chaudhary , Ex. 24 is the statement of
Vishal Munje, Ex. 25 is the statement of Arvind Dhule, Ex. 26 is the
statement of Irfan Ali . All these statements recorded by police during
investigation disclosed causing of accident in the premises of non­
applicants, while deceased doing the work of removal of glass packages.
Thus, the evidence of applicant supported by the police investigation
papers and chargesheet filed against non­applicants of having entry of
the deceased in the premises of non­applicant no. 1 for work and
death. This entry of the deceased is came on record in the premises of
non­applicant no. 1 called as “Empress City”.

21. Document Ex. 27, 28 , 29 are the inquest panchanama and

post mortem report. These documents disclosed causing of injury and
thereby causing of death of the deceased. During investigation police
also seized some of the articles below Ex.32. The document at Ex. 33 to
35 are filed on record and proved by the applicants in evidence. These
documents are of the delivery challan and invoice memo as well as
transit for the same at Ex.35. Thus, these documents at Ex. 33 to 35
proved the case of receiving of the glasses under transport. Hence, on
the date of accident, there was glasses received in the premises of non­
applicant no. 1 Empress City by way of transport vehicle. On the basis
of documents referred above, the facts came on record that deceased
was working with non­applicant no. 2 for non­applicant no.1. The
non­applicant no. 3 is also a contractor acted for non­applicant no.1.
The fact of engaged to deceased through Real Estate is also came on
record on filing of identity card at Ex. 36. This document appears on

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record proved the case that the deceased was engaged through
contractor non­applicant no.3. Therefore, facts came on record in the
evidence of applicant and also duly proved by her that the work was
going on in the Empress City of non­applicant no. 1 and there was a
contract for fitting of alluminium windows and glasses through non­
applicant no. 2 and for engaging the workers . Non­applicant no. 3
having the active role as per Ex. 36 identity card, issued by non­
applicant no.3 for workers. Hence, all three non­applicants having
their common contract in carrying of the work of construction to which
glass windows and alluminium window have to be fitted. Therefore, all
three non­applicants have jointly and severally discharging the work
through workers in construction. In view of this facts, all non­
applicants are liable for causing accident took place even though
negligently by them in the work of construction. The fact of negligence
is appeared on record as per the police investigation and chargesheet
filed against all non­applicants. The chargesheet and investigation
papers of police are sufficiently proved that without taking care
properly and not engaging skilled workers, deceased was engaged for
doing the work. This causes accident of the deceased and for that all
non­applicants were chargesheeted. The circumstances brought under
police investigation and chargesheet are sufficient to accept the
evidence of applicants in view of not application of evidence act strictly
to such proceeding.

22. In view of this chargesheet and on application of the

general principle of law, there is no need in case of compensation to
prove the fact as per the statute under Evidence Act. On application of

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general rule primafacie case have to be accepted here. Ex. 36 is filed on

record showing the working entry by deceased in the premises of non­
applicant no. 1. The work of construction was carried out for non­
applicant no. 1 through non­applicant no. 2 & 3 and for that deceased
was engaged for work. The accident was took place in the premises of
non­applicant no.1 Empress City. On reading of the cross­examination
of the applicant witness and even on pleadings of the non­applicant,
there is no denial of stating of fact regarding causing of accident out of
the premises. There is no evidence or defence particularly raised by all
non­applicants stating that deceased was a stranger in making the
entry in the premises of non­applicant no.1 Empress City. No doubt,
a defence is raised by the non­applicant that anybody can entered in
the premises of non­applicant no.1 but, that does not mean that
deceased was became a stranger. In view of Ex. 36 he became an
employee. The fact is came on record that while entering, there was
no accident took place. On the contrary, while removing of the glasses
from truck, accident was took place due to fall down of the bundle of
glasses on the person of deceased. Thus, the working is came on
record. On application of the general prudence of law circumstances
and facts, no person who being a stranger will entered, where the place
of working going on of unloading truck. As such, removal of the
glasses from the transport vehicle was going on . No evidence is came
on record by way of defence that the deceased, while entering ,some of
the articles, fall down on his body. No such defence is appeared on
record. Therefore, evidence of the applicant ought to be relied upon
that under Ex. 36 deceased was working with the non­applicants and
he was unloading glass packages.

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23. The facts is also came on record in the evidence of applicant

that on 1.2.2009 at about 10 a.m. deceased entered in the premises of
the Empress city under Ex. 36. The truck bearing registration no.
MP/04/K/6815 loaded with glass entered in the premises of Empress
City. The non­applicant no.2 directed to deceased to unload the glass
packages from the vehicle . The deceased was not expert for doing of
that work. In spite of that deceased and other workers were compelled
by non­applicant no.2 for unloading. In that unloading, glass packages
was fall down on the body of the deceased and even other workers. The
glasses on broken and having sharpness, inserted in the body of
deceased and resulted in the death. Therefore, the evidence of the
applicant came on record appears to be believable, though, same was
not witness by him. Under the E.C.Act, strict provisions of Evidence Act
are not made applicable. The grounds and circumstances to be looked
in deciding such dispute between parties. It being a welfare legislation,
liberal view to be adopted. Here, narration of the applicant found
corroborative with the pleading. Same facts corroborative with the
chargesheet and police investigation. Here, nothing is pointed out by
way of defence by the non­applicants regarding not causing of accident
in the premises of Empress City. Therefore, evidence recorded by the
applicant ought to be believable with regard of causing of accident.
The particular facts have been brought by the applicant of causing
accident. Therefore, causing of accident is accepted by me.

24. The causing of accident is within the premises of the non­

applicant no.1. There is no specific denial to this fact by any of the
non­applicants. Hence, causing of accident in the premises became a

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fact in absence of denial by the non­applicants. Now, issue remains of

causing of accident arising out of and in the course of employment of
the deceased. With this regard, the evidence of the applicant is very
particular and specific disclosing the facts of causing of accident. He is
narrated the fact of accident on oath. Therefore, evidence recorded on
oath is relied in deciding the causing of accident of deceased and also
found corroborative with police investigation.

25. The evidence for non­applicant no.1 Ajay Bhoyar appears

that deceased was not in the employment of non­applicant no.1.
However, in cross­examination, he admitted about having knowledge
of causing of accident and also filing of the chargesheet against all non­
applicants. He also admitted causing of accident in the premises.
Thus, causing of accident is came on record in the premises of non­
applicant no. 1 as per evidence of its own witness. This witness also
admitted that there was an appointment orders and documents are
available with non­applicant no.1 but, same were not filed. Hence, the
facts came on record that there was a contract between the parties
regarding the work carried out. Thus, inference drawn that there was
a contract between non­applicants regarding carrying of the work. The
evidence of this witness Ajay Bhoyar in cross disclosed that a truck
came from Bhopal loaded with glass, caused accident and thereby two
persons were died. Therefore, evidence and cross of this witness
supports the case of the applicant that the accident of the deceased was
took place in the premises of Empress City non­applicant no. 1 and in
that accident deceased was died. In view of this fact, again issue arises
that either this deceased was engaged as an employee for unloading of

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the glass packages. This fact is deposed by the applicant on oath.

Again in cross­examination of non­applicant no. 3, Ravish Gavali at Ex.
88 came on record that there was accident took place of the two boys
in K.S.L. Company, while unloading of the glass packages and same
was came to know after words. The reading of the Marathi version of
this witness in cross is “ fn- 1@2@2009 jksth >kysY;k vi?kkrkr nksu eqys ej.k
ikoyh ;kcnn~y eyk ekfgrh vkgs- lnj nksu eqys ds-,l-,y- dai.khps dkp mrjforkauk
ej.k ikoY;kps letys” This admission in cross­examination also
supports the case of the applicant of causing accident of deceased,
while working by him for unloading of the glass packages for non­
applicant no.1 through non­applicant no. 2 & 3. It amounts to causing
of accident arising out of and in the course of employment.

26. The evidence of Smt. Sandhya Dwivedi at Ex. 100 for non­
applicant no.3 disclosed that non­applicant no.3 have no concerned
with the non­applicant no. 1 & 2. There was no engaging to deceased
by non­applicant no. 3 at any time. However, cross­examination of this
witness Smt. Sandhya Dwivedi disclosed that documents filed at Ex.
90,92 and 93 are the vouchers of non­applicant no. 3 company . I have
gone through these documents. The documents disclosed that there
was payment received by non­applicant no.3 from the non­applicant
no.1. The payment was received as per these documents for the work
done by the non­applicant no. 3 for non­applicant no.1 ,through
workers. Therefore, joint and several liability came on record. The
facts also denied by way of suggestion by applicant that there was no
working by deceased with non­applicant no.3. On the contrary, her
cross­examination disclosed that of calling to deceased on phone on

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day of Sunday for work. Thus, the evidence of the applicant

sufficiently proved the case of working through non­applicant no. 2 & 3
for non­applicant no.1 in construction. It is nothing but, carrying of
the work by way of principal employer by non­applicant no.1 and
employed by non­applicant no. 2 & 3 to deceased for work. On this
count joint and several liability appears on record. Therefore, it is held
that there was joint and several liability against all three non­
applicants.

27. The fact is came on record that amount of Rs. 75,000/­ was
deposited by the non­applicant no.1 with authority and therefore,
according to applicant, amounts to an admission of causing accident
arising out of and in the course of employment. Against this, it is
submission of the non­applicants that by way of abundant precaution
that amount was deposited. In view of rival contention of the parties,
mere depositing amount can not be held as admission of the fact
regarding causing of accident out of and in the course of employment.
The facts to be established on merit by the parties in claiming the relief
and even in denying the relief adversely. Therefore, findings to be
recorded on this disputed issues. Here, I have already pointed out that
there was a gate pass at Ex. 36 given by the non­applicant no.3 to
deceased. The fact is also came on record and also proved by the
applicant about bringing of the truck loaded with glass packages.
Deceased and other were directed to unload the same and in that
process on unloading, deceased was died due to accident on falling
packages of glass on his body. Thus, accident arising out of and in the
course of employment is came on record. I therefore, accepted the case

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of applicant as pleaded.

28. The learned advocate for the applicant relied upon

authority reported in 2004 II CLR 135 Gupta Enterprises, Madras V/s
Irusappan and anr. (D.B.). It is observed by their Lordships of the
Hon'ble Madras High Court that “burden is on the employer to prove
that employee was not working under him”. In this proceeding , I finds
that in the premises of non­applicant no. 1, death of deceased was
caused due to accident. The accident was took place and same is found
corroborative with the police investigation report. The evidence also
brought on record by the applicant in claiming the causing of accident
in the premises of non­applicant no.1. Deceased was working for non­
applicant no.1 through non­applicant no. 2 & 3. On proving of this fact
and on bringing of this fact by applicant, burden is upon the employer
to prove not causing of accident and even causing of accident , then it
is not arising out of and in the course of employment. Here, I find that
none of the non­applicants have particularly stated not causing of
accident in premises of non­applicant no.1. However, by way of cross­
examination the facts are came on record of the witness of non­
applicants. Thus, burden is not discharged by non­applicants that
deceased was not working with them. Therefore, relying on the
authority (cited supra) held that accident of the deceased took place
arising out of and in the course of employment and deceased was
working with non­applicants.

29. The authority reported in 2008 II CLR 206 Executive

Engineer, Public Works Department, Yavatmal V/s Raisabanoo wd/o

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Abdul Rahuf & Ors. relief for applicant, it is observed by his Lordship of
the Hon'ble Bombay High Court Nagpur bench Nagpur that ,
“Learned Judge of the Court below has rightly appreciated the
evidence. There is enough evidence to show that the deceased
was engaged as a labourer by contractor and contractor was
carrying out the work at the instance of the appellant non­
applicant no. 1. In view of this the Court find no substance in the
appeal. It is dismissed.”

On relying upon the authority (cited supra), I am of the view that

liability can be enforced against both principal employer and the same
have been appeared in the present case. Here, the work was
performed for non­applicant no.1 through non­applicant no. 2 & 3 by
way of contract. Non­applicant no.2 & 3 engaged to deceased as a
workman. Hence, the liability is held against all the non­applicants.

30. The authority is relied for the applicant of Hon'ble Kerala

High Court reported in 1994 II CLR 648 Koodalingam V/s Supdt.
Engineer. Their Lordships have laid down the observations that
Principal employer is also liable to pay compensation to workman even
if workman was engaged by contractor.
On relying of the authority (cited supra) facts is accepted in
favour of the applicant by me regarding causing of accident arising out
of and in the course of employment and even through contractor.

31. The authority reported in 2006 (110) FLR 989 NTPC/VSTPP,

Vindhya Nagar Sidhi v/s Smt. Rajwati Panika & another relief for
applicant, it is observed by Hon'ble Madhya Pradesh High Court that
accident occurred in the course of employment within duty

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hours,entitlement of compensation.

32. Applicant relied upon authority reported in 2003 (99) FLR

796 New India Assurance Com. Ltd, V/s Mohan Kumar Sahoo. (Orissa
H.C.) . It is observed by the Hon'ble Lordship of Orissa High Court that
“owner engaged the deceased and directed him to drive his vehicle for a
day covered by definition of workman”. In the present case also there
was direction given by the non­applicant no.2 to the deceased to work
of unloading, even though he was not expert and skilled worker.
Hence, on relying upon the authority, I am of the view that accident
caused of deceased is arising out of and in the course of employment.

33. On the point of arising out of and in the course of

employment authority also relied for applicant reported in 2007 II CLR
572 New India Assurance Co. Ltd. Bangalore V/s Channamma (Smt.)
and Ors. (D.B.) . It is observed by their Lordships of Karnataka High
Court that “accidental death of workman employed for
loading/unloading of goods on /from lorry, While excavating sand
from pit, he died due to fall of wall of sand, caved on him.
Commissioner awarded compensation” In present case also direction
were given to the deceased to unload the packages of glasses and in
that process accident took place. Thus, facts is duly established relying
upon the authority (cited supra) by applicant that causing of accident
was there arising out of and in the course of employment.

34. In this case the deceased was forced to do the work though
he was not a skilled labour. He was unloading the glass packages from

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truck. While unloading, packages were fall down on his body and he is
died in accident. This is nothing but, the case of arising out of and in
the course of employment. I therefore, answer issue no. 1 in
affirmative.

35. ISSUE NO. 2 :­ In this proceeding, applicants have

claimed dependency upon the deceased. The wages of the deceased
are claimed as Rs. 5451/­. In evidence applicant Shaikh Mohd.
deposed the wages as prescribed for construction work by the
Government. Per day wages is claimed by the applicant Rs. 181=70/­.
In main application total amount is claimed towards monthly wages as
Rs. 5451/­. This amount is not disputed by the non­applicants. There
is no evidence brought on record by the non­applicants about paying
of the wages. I therefore, held that wages of the deceased as claimed by
the applicant are Rs. 5451/­. However, there is ceiling limit of Rs.
4000/­ under the schedule. Thus, it comes to Rs. 4000/­. Even on
calculation @ Rs.181=70/­ for 26 days, then also it comes to more than
Rs. 4000/­. Therefore, on consideration of Rs. 4000/­ salary and 50% of
it, comes to Rs. 2000/­. The evidence is came on record that deceased
was aged about 17 years . There is no adverse evidence brought on
record by the non­applicants. Thus, relevant factor became as per
schedule 227.49. On calculation of the same , it comes to Rs.4,54,980/­.
Accordingly, the applicant is entitled to the same. This calculation is
not disproved being illegal. Thus, I allowed the same.

36. The applicant also claimed funeral expenses of Rs. 2500/­.

Nothing is pointed out that such expenses was paid by the non­

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applicants. I therefore, allowed this amount. Thus, the applicants are

entitled to Rs. 4,57,480/­. The facts is came on record that the non­
applicant no.1 has deposited Rs. 75,000/­ in this authority. Therefore,
after deducting of Rs. 75,000/­ from the amount of Rs. 4,57,480/­ , it
comes to Rs. 3,82,480/­. Hence, the applicants are entitled to Rs.
3,82,480/­.

37. Here, the case is pointed out for the applicants that though
Rs. 75,000/­ is deposited by the non­applicants but, that was a short
one and not in­accordance with the calculation prescribed for
compensation. Here, nothing is pointed out by the non­applicants that
according to them, the calculation of Rs. 75,000/­ was proper. No
doubt, it shall not be according to the arthematic calculation but, to
some extent it be proper. Here, to much difference and variance
appeared in the calculation. The calculation of the applicant comes to
Rs. 4,57,480/­. However, only Rs. 75,000/­ was calculated by the non­
applicant no. 1. This calculation is totally illegal and therefore, I am of
the view that after deducting the amount of Rs. 75,000/­there shall be
imposing of interest @ 12% p.a. from the date of accident.

38. The learned advocate for applicant relied upon authority

reported in 2010 I CLR 797 Dattatraya Layappa Koli & Ors. V/s
Maharashtra State Electricity Distribution company , through Executive
Engineer, Sangli. On relying upon authority (cited supra) fact is
established that the wrongly amount was deposited and that is very
short one. The observation of his Lordship is that “all these actions on
the part of the employer i.e. delaying deposit of the compensation

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 -23- ECA Case No. C­5/2009

beyond the statutory period of one month and wrongfully calculating

the wages thereby reducing their liability were not justifiable”. In
calculation on relying of the authority, it is expected from the employer
to point out calculation was proper, which was deposited with the
authority. Same is not proved. I therefore, held that the amount was
not deposited as per right calculation or to the extent thereof. Hence,
the liability is held against the non­applicant of paying interest @ 12%
p.a. on expiry of one month. It means from 1.3.2009. Accordingly, the
applicants are entitled to compensation amount of Rs. 3,82,480/­ with
interest @ 12% p.a. from 1.3.2009 till its realisation.

39. The liability already held by me against all non­applicants.

In pleading the facts is specified by the applicant by way of
amendment of allotment of the work to non­applicant no. 3 by non­
applicant no.2. Non­applicant no.3 is the sister concerned of non­
applicant no.1. Therefore, the work performed by the deceased was
became for non­applicant no.1 through non­applicant no. 2 & 3. In
such circumstances, all non­applicants are liable to pay compensation
amount jointly and severally with interest thereupon.

40. The issue arise regarding imposing of penalty against non­

applicants @ 50%. Here, in view of recent authority of Hon'ble
Supreme Court in the case of Oriental Insurance Company V/s Sibi
George 2012 III CLR page 6 (S.C.) there shall be issuance of show­
cause notice in claiming the penalty. Therefore, in deciding this
proceeding , I unable to impose penalty as claimed by the applicants.
However, there will be a liberty to the applicant in claiming so. Here,

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the case is made out by the applicant in grant of compensation amount

with interest. Accordingly, same relief is allowed. Thus, I answer issue
no.2 in partly allowed and pass following order.

ORDER

1. The application of the applicants is hereby allowed

with costs against non­applicant no. 1,2 & 3.

2. The applicants are entitled to receive Rs. 3,82,480/­

with interest @ 12% p.a. from 1.3.2009 till its realisation
from non­applicants no. 1,2,& 3 jointly and severally .

3. Applicants have liberty to claim the penalty against

non­applicant no. 1,2,& 3 , if so desire and in­accordance
with the procedure of law.

4. Accordingly, application is disposed of.

Nagpur. ( M. K. Ramteke)
Dated :­ 16.1.2014. I/c Commissioner
Under, Employees Compensation Act
Forth Labour Court, Nagpur.
kcd

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