Dismissed

The Asst. Executive Engineer v. Smt. Kempamma

Karnataka HC7 Jun 2022MFA/8590/2016

Case brief

AI extract

What is this about?

This High Court dismissed an appeal by CESC against a compensation award for the electrocution death of a worker. The court held that the principal employer is jointly and severally liable to the claimant regardless of indemnity agreements with the contractor, though the employer retains the right to seek recovery from the contractor.

What did the court decide?

The appeal was dismissed, and the judgment and award of the Tribunal awarding compensation was confirmed.

The Asst. Executive Engineer Vs Smt… — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.8590/2016(WC)

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BETWEEN:

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THE ASST. EXECUTIVE ENGINEER CESC SHIVALLY SUB-DIVISION, (KEB OFFICE), SHIVALLY, DUDDA HOBLI, MANDYA TALUK-571405.

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2 . THE EXECUTIVE ENGINEER (KEB OFFICE) CESC, MANDYA- 571401.

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… APPELLANTS

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(BY SRI. HARI KRISHNA.S.HOLLA, ADVOCATE APPEARING THROUGH V/C)

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AND:

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SMT. KEMPAMMA W/O. LATE CHOWDANATHAPPA, R/O. HULIVANA VILLAGE, KERAGODU HOBLI, MANDYA TALUK AND DISTRICT-571446.

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MR. SIDDARAJU S/O. VEERANNA, CONTRACTOR, AGED ABOUT 37 YEARS, VEERABHADRESHWARA ELECTRICALS, 4TH CROSS, V.V. NAGAR, KALLAHALLY, MANDYA-571401. … RESPONDENTS

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(BY SRI. MARI GOWDA, ADV FOR R1, SRI. L.RAJA, ADV FOR R2)

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THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 01.07.2016 PASSED IN ECA.NO.1/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA, AWARDING COMPENSATION OF RS.5,19,950/-, AFTER GIVING DEDUCTION OF RS.50,000/- ALREADY RECEIVED BY THE PETITIONER, TUNE OF RS.4,69,950/-WITH INTEREST AT 6% PER ANNUM FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed under Section-30(1) of Workmen’s Compensation Act, 1923, by the claimants being aggrieved by the judgment and award dated 01.07.2016, passed by the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Mandya (hereinafter referred to as ‘Tribunal’ for brevity) in ECA No.1/2014.

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Facts giving rise to the filing of the appeal briefly stated are that, respondent Nos.1 and 3 directed deceased H.C.Shivu and one Girish to connect electricity supply to a newly erected poles with the main poles stating

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that electricity has been cut off to the main line, thereby when the deceased climbed newly erected poles, the electricity flowed into the wire, thereby both were electrocuted and Shivu was shifted to hospital, declared dead.

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The dependants of the deceased filed a petition under Section-10 of the Workmen’s Compensation Act, 1923, seeking compensation for the death of the deceased along with interest. On service of summons, respondent Nos.1 to 3 therein, appeared and filed their statement of objections.

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The learned counsel for the appellants submitted that the appellants are not liable to pay compensation to respondent No.1, as per clause No.8, of the agreement between the appellant and respondent No.2, wherein it is stated that respondent No.2 shall be solely responsible for any compensation payable to the labourer employed by him, as per the relevant Acts And Rules, in the event of any accident or for any other

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reasons. Therefore, in the above said circumstances, the appellants are not the employers of the deceased, but the deceased was working under respondent No.2. Therefore, respondent No.2 is liable to pay the damages/compensation. Therefore, submitted that the order passed by the Tribunal on the strength of the clause No.8 of the agreement is not correct, because the appellants are not liable to pay the compensation. But the Tribunal has wrongly held that the appellants and respondent no.2 are jointly severally liable to pay the compensation. Further, submitted that the Tribunal ought to have held that respondent No.2 alone is liable for payment of compensation and making the appellant jointly liable to pay the compensation is not correct.

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The learned counsel for respondent No.1 submits that the deceased was working for and on behalf of the appellants but through respondent No.2. Therefore, the appellants are also employer and there is a relationship of employer and employee exists between the appellants

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and the deceased. Just because the deceased was working through respondent no.2, it cannot be said that there is no relationship between the employer and

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employee/deceased. Further, submitted that since the deceased was working for and on behalf of the appellants and therefore if any loss or injury or damaged caused, the appellants are also liable to pay the compensation which is correctly held by the Tribunal.

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Further, submitted that even if there is any contract between the appellants and respondent No.2, considering this the Tribunal has ordered for ‘pay and recovery’ and under such the circumstance, there would be no loss caused to the appellants, as the appellant can very well recover from respondent No.2, in view of the agreement executed between them. Therefore, in the said circumstances, there is no merits involved in the appeal and therefore prays for dismissal of the appeal.

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It is not disputed that respondent no.2 is a contractor under appellant Nos.1 and 2 and work of

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contract was given for erecting electric poles. The deceased was working as an employee under the contractor - Respondent No.2 and was executing work, on and behalf of the appellants. Therefore, considering the nature of employment and entrustment of work, the deceased was executing the work for and on behalf of the appellants. Therefore, the relationship of employer and employee existed between the appellants and deceased.

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Though the deceased was hired by respondent No.2, but the deceased was entrusted with the work for and on behalf of the appellants, therefore, just because the appellants and respondent No.2 have entered into an agreement that does not mean that the appellants were not at all responsible for the deceased and that he is not an employee. Therefore, even though the deceased was working under the employment of respondent No.2, by virtue of contract / agreement between the appellants and respondent No.2, he was entrusted with the work of the appellant. Therefore, in this regard Section–12(2) of the

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Employees Compensation Act is to be considered. Section12(2) of the Employees Compensation Act, stipules as follows:

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“12. Contracting-

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(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor (or any other person from whom the (employee) could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the (employee) could have recovered compensation) and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.

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Therefore, even if there is an agreement between the appellants and respondent No.2, that respondent No.2 shall indemnify any loss of life / damages occurred but without affecting the rights of entitlements of

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the deceased employee. This is very well considered by the Tribunal in its judgment. Therefore, even if there is any agreement between the appellants and respondent No.2, it is an internal arrangement / agreement between the appellants and respondent No.2 for which the deceased was not a party and therefore if there is any clause in the agreement, that should not affect the rights and entitlement of the deceased / injured.

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Furthermore, as per Sub-section-(2) of 12 of the Employees Compensation Act, referred to supra states that it is incumbent on the part of the Contractor to indemnify any person standing to him in the relation of a contractor from whom the employee could have recovered compensation and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner the loss to the appellants who are recognized to be as principle employer. Therefore, the appellants shall get indemnification from respondent No.2 and therefore in other words, the Tribunal

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has followed the principle of ‘pay and recovery’. The appellants shall first pay the compensation and then recover it from respondent No.2 - contractor by virtue of agreement between them, which is produced as per Exhibit-R3. Therefore, the appellants are very well reserved liberty to get indemnification from respondent No.2, as in other words following the principle of ‘pay and recovery’.

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In this regard, I do not find any illegality or perversity in the approach of the Tribunal. Where it is not a disputed fact that the appellants have entrusted the work of erection of electric pole by way of contract to the respondent No.2 and the deceased was working for and behalf of the appellants but through respondent No.2, therefore, whenever a mishap occurs then the appellants are also jointly and severally liable alongwith the contractors. Therefore, this is rightly observed by the Tribunal and accordingly ordered, which is perfectly justified one. Just because there is an agreement the

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appellants and respondent No.2 that cannot absolve the liability of the appellants in payment of compensation. The appellants were given every liberty to get indemnification from respondent No.2- contractor.

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In the present case, the appellants wanted him to engage in erection of electric poles and therefore entered into agreement with respondent No.2. Then the deceased while executing the work of erection of electric pole died. Therefore, where it is proved that the deceased was working for and on behalf of the appellants then the appellants are jointly and severally liable along with respondent no.2 and the claimants are not affected by any bilateral agreement between the appellants and respondent No.2. As it is purely privity of contract between them without affecting the liability of the deceased / claimant, therefore, this is rightly considered by the Tribunal and passed a well-reasoned and considered judgment, which needs no interference by this Court.

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The learned counsel for the appellants relied on the judgment of this Court in the case of Karnataka Power Transmission Corporation Limited And Others Vs. The State Of Karnataka And Others , dated 05.07.2019, passed in Writ Appeals Nos.100404100521/2017 and connected matters . Upon perusal of the said judgment, it is seen that the facts and circumstances are different from the present case. In the above referred case, the question involved was regularization of contract employees. In that case, there was a prayer for regularisaion of service of the contract employees with the KPTCL. Therefore, the said judgment is not applicable in the present case, as the factual matrix and principle of law laid down therein is entirely different. Therefore, the above judgment referred to supra is not helpful to the appellants.

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Therefore, for the aforesaid reasons, it is held that the quantum of compensation awarded by the Tribunal is justified. Furthermore, the appellants herein

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have paid Rs.1,00,000/- (Rupees One Lakh Only) to the respondent No.1 - claimant. Therefore, this conduct of the appellant also proves the fact that it is incumbent upon the appellants being empowered to indemnify the loss occurred to any employee, even though they executed contract, with the contractor – respondent No.2. Therefore, the appellants are liable to pay compensation, which is rightly considered by the Tribunal.

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Under these circumstances, I do not find any good ground to interfere with the judgment and award passed by the Tribunal. Hence, the appeal being devoid of merit is liable to be dismissed.

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Accordingly, I pass the following:

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ORDER

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i. The appeal is dismissed.

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ii. The impugned judgment and award dated 01.07.2016, passed by the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Mandya in ECA No.1/2014, is hereby confirmed.

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iii. The amount in deposit shall be transmitted to the Tribunal along with a copy of this judgment and TCR for enabling to release the amount in favour of the respondents-claimants.

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Sd/-

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JUDGE

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PK/JJ

The Asst. Executive Engineer v. Smt. Kempamma

Case brief

What is this about?

What did the court decide?

The Asst. Executive Engineer v. Smt. Kempamma

Case brief

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