2003(1) ALL MR 1089
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
A.B. NAIK, J.
Kamlakar S/O. Alekarao Pathak (Died Per L.Rs.) Vs. Smt. Mainabai Ashok Amrao & Ors.
First Appeal No.145 of 1986
9th April, 2002
Petitioner Counsel: Shri. V. N. UPADHYE
Respondent Counsel: Shri. P. R. KATNESHWARKAR, Shri. R. P. PAWAR
(A) Workmen's Compensation Act (1923), Ss.2(N), 12(2) - Relationship of principal and agent - Finding of fact as to by Commissioner - Finding of Commissioner based on appreciation of evidence - No perversity pointed out - Such finding of fact cannot be interfered with.
On the facts of this case, it is apparent that Opponent No.1 was the owner of the house and he has given contract for construction of house to the Contractor i.e. Opponent No.2 and Contractor has engaged Ashok as a Worker, who died due to the accident at the time of construction of the house which was in progress and in my opinion, the house owner i.e. Opponent No.1 is not liable, but it is the Contractor, Opponent No.2, who has engaged deceased Ashok is only liable to pay the compensation to the heirs of the deceased workman as there exists the relationship of Master and Servant between Opponent No.2 and deceased Ashok. The findings recorded by a Commissioner are proper finding of fact based on an appreciation of evidence nor the said finding can be called as perverse as such, no interference is called for by this court in the said finding. [Para 13,14]
(B) Workmen's Compensation Act (1923), S.4(A) - Scope of - S.4(A) being mandatory in character, it has to be followed strictly - Liability of employer to pay compensation cannot be postponed until the liability is fixed by Commissioner or Court.
Section 4(A) of Workmen's Compensation Act being a mandatory in character, it has to be followed strictly. Workmens Compensation Act is beneficial provision when construing the beneficial provisions, such Statute has to be construed giving the widest scope to ameliorative and beneficial provision intended by the Legislature. The court always has to take it pedantic approach to the provisions to achieve the object of the Act. Section 4(A) as stated above is mandatory and whenever the compensation was due i.e. as soon as the notice of accident is given under Section 10, within one month from the date, but it is due from the date of accident, the compensation has to be paid when it falls due as provided under Section 4(A) of the Act. By considering Section 4(A), there is no provision or there is any scope to postpone the accrual of this right of the workman or his heir as the case may be to receive compensation to future date under the Act a Statutory right is created in case of injured workman or his heirs in case of death to receive compensation and by considering Sec.3, Sec.4(A) and other provisions of the Act, it will reveal that, under this Act, no provisions are made to suspend or to postpone the liability of an employer to pay the compensation. It is duty of the employer to pay compensation U/s.4A(1) at the rate provided, by Sec.4, as soon as injury or death is caused to the workman. When the employer fails to do so and makes no provisional payment U/s.4A(2), the employer is liable to pay interest and penalty and that right cannot be postponed or curtailed by accepting the pleas of bonafides etc. from the person liable to make payment. There is no provision under the Act or in particular, under Section 4(A) that the payment or deposit of the compensation is to be postponed and that is to be deposited only after the liability is fixed by the Commissioner or court. If this contention is accepted then the object of the legislative intention behind bringing the beneficial legislation, such as Workmens Compensation Act will be frustrated. Therefore, it is not possible to accept the contention of the learned Counsel that as there was doubt in the mind of the party as to who should deposit the compensation therefore, the payment was deferred and as such, the learned Commissioner should not have imposed penalty. [Para 15]
Pratap Narain Singh Deo Vs. Shrinivas Sabata, AIR 1976 SC 222 [Para 15]
JUDGMENT :- This appeal is preferred by Original Opponent No.2, namely Kamlakar Pathak, (who died during pendency of this Appeal and the Appeal is now being prosecuted by his heirs and L.Rs. For the sake of brevity, the parties will be referred to their original status). The Opponent No.2 against whom the order is passed by the Commissioner for Workmen's Compensation, Aurangabad calling upon him to pay Rs.24,000/- by way of compensation and Rs.6,000/- as penalty and 6% interest on Rs.24,000/- from 28th November 1982 to the heirs of deceased Ashok, who died in the accident, on 28th November 1982. The said death of Ashok has arisen out of and in the course of employment.
3. The Opponent No.1 was constructing a house at Ward No.436 Cantonment, Aurangabad. For the construction of the said house he was given a contract to Opponent No.2. Opponent No.1 is a trader and money lender by profession. The construction of building was in progress. One Ashok Sukhdeo Amrao was a worker, employed by the Opponent No.2 on the construction site. On 27th November 1982 at about 3.15 p.m., when the centering of second floor roof was in progress and it was being attended to by deceased Ashok, he fell on from the second floor on a drum, which was on the ground and sustained injuries. He was taken to the hospital immediately but in the hospital, he succumbed to the injuries.
4. The applicants are the heirs of deceased Ashok. On 14-3-1983, they issued notice under Section 10 of the Workmen's Compensation Act, (hereinafter referred to as the "Act") to both the opponents, but the opponents have not replied or not made any payment. The applicants claimed that the deceased was getting wages of Rs.750/- p.m. therefore, the applicants claim compensation of Rs.24,000/-, alongwith penalty and interest. However, no reply is given by the opponents to the notice dated 14-3-1983. Therefore, they approached the Commissioner for Workmen's Compensation by submitting the application, claiming compensation from opponents under Section 4 of the Act.
5. It is contended by the applicant that deceased Ashok was employed by the opponents on monthly salary of Rs.750/- and he was doing work of construction from April 1982. As the death occurred during the course of employment, the opponents should be directed to pay the compensation.
6. The application came to be resisted by the opponents by filing separate written statement at Exh.9 and 11 respectively. Opponent No.1 contended that house No.436 was occupied by him as a tenant. He has purchased that house and decided to demolish the old house and construct the new house. After purchase, he went to a rented house and the house, which was purchased came to be demolishing and he entrusted the work of construction of the new house to opponent No.2 as an independent Contractor. Opponent No.2 was engaged by him for the purpose of demolishing and construction as he was a reputed building Contractor. He contended that the said Contractor - Opponent No.2 engaged Ashok, the deceased who, was working under the direction, supervision and control of Opponent No.2 in the work of construction of the house. Opponent No.1 contended that it is not his trade or business to construct the house, but he was carrying on a business of grocery shop in the name and style "Sagar General Stores" situated in house No.281-A, Darji Bazar, Cantonment, Aurangabad. Opponent No.2 was making payment to the deceased. Opponent No.1 admitted the fact that Ashok died due to the injuries sustained by him on account of fall from second floor where the construction was in progress. He contended that the notice, which was received by him came to be replied on 28th March 1983. He denied that he is liable to make payment for compensation to the applicant. On these averments, the Opponent No.1 prayed for dismissal of the said application.
7. Opponent No.2 had not disputed accident or the death of Ashok on the construction site. He accepted the relations between him and Opponent No.1 as Contractor and Principal and he contended that he was a Labour employed by Opponent No.1. As Opponent No.2 was knowing reading and writing and placed with the amount of total wages to be distributed to the labours, the amount used to be paid by Opponent No.1 to Opponent No.2 for distributing the same to the workers those are employed at the site of construction. He contended that the work of supervision was with some other persons engaged by Opponent No.1. Therefore, he contended that the Opponent No.1 alone is liable for payment of compensation.
8. On the basis of aforesaid pleadings, the learned Commissioner framed the issues. The parties to the proceedings led the evidence to support their case. On the basis of the pleadings and the evidence, produced before the learned Commissioner, the learned Commissioner held that the applicants have failed to prove that deceased Ashok was employed by respondent No.1. Further, the learned Commissioner held that there was no relations of Contractor and Principal between Opponent Nos.2 and 1. In respect of the liability to pay the compensation, the learned Commissioner held that Opponent No.2, who is a Contractor has engaged deceased Ashok and there exist a relationship of Master and Servant between Opponent No.2 and deceased Ashok and, therefore, Opponent No.2 is alone liable to make the payment. The learned Commissioner also held that after the notice, the compensation is not paid therefore, Opponent No.2 is also liable for the penalty and accordingly, he imposed penalty of Rs.6,000/- on Opponent No.2. Accordingly, by the Judgment and Order dated 21-7-1986, the application came to be allowed.
9. Feeling aggrieved and dissatisfied by the order passed by the learned Commissioner, Opponent No.2 filed this appeal under Section 30 of the Act. The learned Counsel, Shri. Upadhye appeared on behalf of the appellant/Opponent No.2 has stated that the amount of compensation i.e. determined by the Commissioner has been deposited and the applicants have withdrawn the said amount. The learned Counsel Shri. Upadhye raised the following propositions to satisfy this court that the present appeal involves substantial questions of law. As this appeal is under Section 30, appeal can be entertained only on the ground that the case involves substantial question of law. Shri. Upadhye contended that in order to succeed to have the compensation, the claimant must establish the relationship of Master and Servant and also whether Opponent No.1 who is a trader and a money lender, can be held liable for payment of compensation and the house is being constructed for his trade and business on the basis of that Opponent No.1 is a Principal and Opponent No.2 being contractor and whether Opponent No.1 is liable for reimbursement. On this submission, I framed the following substantial questions of law:
i) Whether the relationship of Master and Servant vis-a-vis Opponent No.2 and the deceased Ashok is established ?
ii) Whether the finding recorded by the Commissioner regarding liability of payment of compensation by Opponent No.2 is perverse ?
iii) Whether the learned Commissioner has properly used his discretion in imposing penalty and interest ?
10. The learned Counsel Shri. Upadhye has stated that order of imposing of penalty is improper because on the date of the accident, it was not sure who is responsible for payment of compensation and whether the Opponent No.1 or Opponent No.2 are responsible for payment of compensation. In this background, the Opponent No.2 genuinely and honestly pleaded that unless the question of liability is established, question of imposing penalty does not arise. Therefore, non-payment of compensation immediately after the notice by Opponent No.2 cannot be said to be a deliberate action. The answer to this submission of learned Counsel, which I have quoted above I can proceed to decide the above substantial questions of law, will depend on the finding that will be recorded by me in this Appeal. Before I could consider the abovesaid contention, I may state that this court is not entitled to interfere with a finding of fact arrived at by the Commissioner for Workmen's Compensation except on substantial question of law, which includes a finding of fact, which is not based on evidence, real substantial question that has to be decided by me in this appeal is whether there exists relation of Principal and Contractor between Opponent No.1 and Opponent No.2 and whether deceased was employed by Opponent No.1 or by Opponent No.2. I need not ponder on the issue as to whether the deceased was workman or not, as it is accepted fact that deceased was employed on the construction work and for all purpose, he is a workman. Both the counsel for Opponent Nos.1 and 2 have not seriously disputed this aspect. The learned Counsel for Opponent No.2 tried to persuade me to hold that deceased was engaged by Opponent No.1 casually and he is not a workman within the meaning of Section 2(N) read with Section 12(2) read with Schedule II, Item No.VIII of the Act.
11. In order to find out whether the learned Commissioner, who recorded a finding that there exists any relationship of Contractor and the Principal between Opponent No.2 and whether the finding recorded by the learned Commissioner that Opponent No.2 is liable to pay the compensation is supported by evidence on record. If this finding is supported by the evidence on record in this appeal, I am not entitled to re-appreciate the evidence and to arrive at different conclusion. The learned Counsel Mr. Upadhye and Mr. Pawar appeared on behalf of Opponent Nos.2 and 1 have placed reliance of several reported judgments including of this court, Madras High Court and Kolkata High Court. If I find that the finding, which has been recorded is not based on evidence and the finding is perverse, then this court can interfere in the said finding in the appeal filed under Section 30 of the Act and then only I can consider the authorities relied on by the respective counsels.
12. The widow of the deceased has entered into witness box. She has stated that Opponent No.1 has appointed the deceased as workman on the construction work because the deceased was expert in centering work. She is not in a position to say about the exact relations between Opponent Nos.2 and 1 and naturally it is not expected from the widow of the deceased to establish the exact relation of Opponent Nos.1 and 2. Therefore, the only way to find out the relations between Opponent Nos.1 and 2 from their own evidence. Opponent No.1 is examined at Exh.19. He has stated that he has purchased the old house where he was staying as a tenant. He was occupying the said house since 1967, as a tenant. The said house was purchased sometime in 1974. Thereafter, the other tenants who were occupying the said house, having vacated and thereafter he decided to demolish the said house and reconstruct the same. The work of demolishing started in 1982, which took two months. During the time of demolition, reconstruction, the Opponent No.1 temporarily shifted his residence to house No.57 of Tofkhana Bazar, Cantonment. He has stated that he has given a contract to Opponent No.2. The contract was to supply the material only as per the work done and the payment was to be made as per the measurement of work to Opponent No.2. Opponent No.1 was not to engage any worker. It was the responsibility of Opponent No.2 as Opponent No.2 was a Building Contractor and it was his business. Opponent No.1 stated that his principal business is trade and money lending, which he was carrying on in the shop premises, which is situated in the premises being No.281-A, Darji Bazar. He has stated that construction activities is not his business nor the construction of a house, has to do anything with his business, that he is carrying on. He has also produced certain documents showing the payment made to Opponent No.2. At some occasion payment by cash is made and at some occasion, the payment is made through the crossed cheque drawn on Punjab National Bank. Evidence of Opponent No.1 shows that he used to make payment to Opponent No.2. He has stated that he has no direct relation and control over the workers those are engaged in construction work by Opponent No.2. The evidence of Opponent No.2 is at Exh.28. He has stated that he does the labour work at construction site since last 30 years. He has admitted that he was working at the site, but he stated that he was not a Contractor, but he was labour. He stated that he worked as Labour for the construction of the building of Opponent No.1. He stated that one Badiuddin was employed by Opponent No.1 to supervise the work. In my opinion, the statement has been made by this witness only to show that the supervision work is being done by Opponent No.1 with the help of Badiuddin and thereby he tried to suggest that the Opponent No.1 has full control over the construction work, but in the absence of evidence of Badiuddin I am not ready to accept this statement of Opponent No.2.
13. Evidence is brought on record by the Opponent No.1 that Opponent No.2 has signed almost all the receipts designating himself as a Contractor to show that the Opponent No.2 is a Contractor and not a labour. Opponent No.2 accepted the signatures of all the receipts, produced on record from Exh.30 to 38. Except Exh.28, where there is word "building" written before word contractor, it is contended that the word "building" is written subsequently. Even if this receipt is ignored all other receipts showed that he has signed and put a word Contractor. It is brought on record in the cross-examination by Opponent No.1 where Opponent No.2 has admitted that he has undertaken a building work at Bishop High School. When he was asked some questions about his contract at Samarthnagar Society for construction apartment in front of Law College, Aurangabad, he has not given any answer to this question. A specific question was put to Opponent No.2 i.e. "You had taken the work of Holly Cross Auditorium, as Contractor?", the learned Commissioner noted "No answer is given". From the evidence of Opponent No.2, it is clear that he is either avoiding the answer or not answering question. This shows that he is trying to suppress the fact of his business as contractor only to avoid the payment of compensation. There is no relationship of Principal and Agent between Opponent Nos.1 and 2 as the finding that has been recorded by the learned Commissioner is based on the appreciation of evidence on record and the finding that has been recorded being a finding of fact, which is recorded by the Commissioner by appreciating evidence properly. No perversity of this finding is pointed out by the learned Counsel Shri. Upadhye and on going through the evidence of Opponent No.2, I am satisfied that the finding recorded by the learned Commissioner, requires no interference. As it is accepted that Opponent No.2 is a Contractor and he has engaged deceased Ashok on the construction work undertaken by him, there exists relationship of Master and Servant, between Opponent No.2 and the deceased Ashok. The point framed is answered accordingly.
14. Coming to the next question as to whether the finding that has been recorded by the learned Commissioner holding Opponent No.2 liable to pay compensation is proper. The evidence on record shows that Opponent No.1 was to construct a house for his use and occupation. The construction of house that is undertaken by the Opponent No.1 is not his trade or business. The house is not being constructed is in relation to or connected with the business of grocery or money lending business i.e. being carried out by him. Opponent No.2 has not produced any evidence to show that the construction house was in fact the profession of Opponent No.1. In assessing this evidence, in my opinion, Section 12 of the Act is not attracted at all. In my opinion, the finding, which has been recorded by the learned Commissioner as to the relationship of the Opponent Nos.1 and 2 is valid and proper, requires no interference. I have seen from the evidence that Opponent No.2 has received amount from Opponent No.1, where he has signed as a Contractor. If the contention of Opponent No.2 is to be accepted that he was appointed as labour by Opponent No.1, the Opponent No.2 should have brought some evidence to show that he has received the amount not as a Contractor but as a labour, but the evidence on record shows that he has acknowledged the payment as a Contractor, as it is clear from Exh.30 to 38 wherein below his signature, word "Contractor" is written. Looking into cross-examination by Opponent No.1 of Opponent No.2 where it is brought on record that construction of houses or contract is the business of Opponent No.2 and he has employed deceased Ashok for construction of the house of Opponent No.1. In my Judgment, on the facts of this case, it is apparent that Opponent No.1 was the owner of the house and he has given contract for construction of house to the Contractor i.e. Opponent No.2 and Contractor has engaged Ashok as a Worker, who died due to the accident at the time of construction of the house which was in progress and in my opinion, the house owner i.e. Opponent No.1 is not liable, but it is the Contractor, Opponent No.2, who has engaged deceased Ashok is only liable to pay the compensation to the heirs of the deceased workman as there exists the relationship of Master and Servant between Opponent No.2 and deceased Ashok. The findings recorded by a Commissioner are proper finding of fact based on an appreciation of evidence nor the said finding can be called as perverse as such, no interference is called for by this court in the said finding. Accordingly, I confirm the findings and I hold that no substantial question of law, is involved in this appeal.
15. The contention of the learned Counsel that the penalty should not have been imposed, the learned Counsel has tried to contend that unless and until the liability is fixed then only, question of granting penalty will arise. The learned counsel contended that the Opponent No.2 bonafidely believed that Opponent No.1 is liable and on the bonafide belief, he has not made payment immediately after the receipt of notice. In my opinion, this contention cannot be accepted as the Act makes a provision for imposing penalty for non-paying the compensation, as per Section 4(A) of the Act. Section 4(A) (as it stood then) reads thus:
4(A) - Compensation to be paid, when due and penalty for default,
(1) Compensation under Section 4 shall be paid as soon as it falls due;
(2) In case, the employer does not accept the liability for compensation, to the extent claimed, he shall be bound to make provisional payment based on the extent of liability, which he accepts, and, such payment shall be deposited with the Commissioner or made to workman, as the case may be without prejudice to the rights of the workman to make any future claim. (underline is mine).
(3) Where any employer is in default in paying the compensation due under this Act, within one month from the date it falls due, the Commissioner may direct that in addition to the amount of arrears, simple interest at the rate of six percent per annum on the amount together with, if in the opinion of the Commissioner, there is no justification for delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty.
By careful reading of this Section, it is clear that the provision is made in order to ensure that the workman to whatever the employer is prepared to pay immediately, pending the decision. In my judgment Section 4(A) being a mandatory in character, it has to be followed strictly. Workmens Compensation Act is beneficial provision when construing the beneficial provisions, such Statute has to be construed giving the widest scope to ameliorative and beneficial provision intended by the Legislature. The court always has to take it pedantic approach to the provisions to achieve the object of the Act. Section 4(A) as stated above is mandatory and whenever the compensation was due i.e. as soon as the notice of accident is given under Section 10, within one month from the date, but it is due from the date of accident, the compensation has to be paid when it falls due as provided under Section 4(A) of the Act. By considering Section 4(A), there is no provision or there is any scope to postpone the accrual of this right of the workman or his heir as the case may be to receive compensation to future date under the Act a Statutory right is created in case of injured workman or his heirs in case of death to receive compensation and by considering Sec.3, Sec.4(A) and other provisions of the Act, it will reveal that, under this Act, no provisions are made to suspend or to postpone the liability of an employer to pay the compensation. It is duty of the employer to pay compensation U/s.4A(1) at the rate provided, by Sec.4, as soon as injury or death is caused to the workman. When the employer fails to do so and makes no provisional payment U/s.4A(2), the employer is liable to pay interest and penalty and that right cannot be postponed or curtailed by accepting the pleas of bonafides etc. from the person liable to make payment. There is no provision under the Act or in particular, under Section 4(A) that the payment or deposit of the compensation is to be postponed and that is to be deposited only after the liability is fixed by the Commissioner or court. If this contention is accepted then the object of the legislative intention behind bringing the beneficial legislation, such as Workmens Compensation Act will be frustrated. Therefore, it is not possible for me to accept the contention of the learned Counsel that as there was doubt in the mind of the party as to who should deposit the compensation therefore, the payment was deferred and as such, the learned Commissioner should not have imposed penalty. The learned counsel has placed reliance on the Judgment of this court, but on going through the Judgment, it is not possible to accept the contention of learned Counsel as the Section 4(A) is clear and there is no doubt whatsoever as Section 4 mandates that the compensation under Section 4 shall be paid when it falls due. When the provision is so clear and unambiguous, it has to be followed as it is in the letter and spirit. Hence, the contention of the learned counsel cannot be accepted. Imposing penalty by the learned Commissioner is, therefore, proper and requires no interference by this court. This plea taken by the learned counsel may sound reasonable, but in my opinion, it is taken only to avoid the rightful payment of compensation to workman's heirs. In my Judgment, the plea is baseless and unreasonable and cannot be accepted. I may refer to a judgment of the Apex Court in this context, reported in A.I.R. 1976 SC 222, in case of Pratap Narain Singh Deo, Appellant Vs. Shrinivas Sabata and another, Respondents, wherein, the Apex Court has considered the scope and importance of Sec.4-A of the Act. Considering the law decided in this case by the Apex Court in AIR 1976 SC 222 :
"8. It was the duty of the appellant, under Section 4-A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-Section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondents's personal approach for obtaining compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty."
In view of the above observation, the contention of the counsel has to be rejected.
16. No other points are raised by the learned Counsel for the appellants. For the reasons stated above, as there is no substantial law involved in this appeal, it stands dismissed. As Opponent No.2 has deposited the entire compensation and the penalty, which is withdrawn by the applicants, Opponent No.2 died during pendency of the appeal and the heirs are prosecuting the appeal, on this background, though I am confirming the Judgment and Order passed by the learned Commissioner for Workmens Compensation dated 21-7-1986, in the facts and circumstances of this case, there will be no orders as to costs throughout.