1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 3253/2009 WITH CIVIL APPLICATION NO. 9905/2009 Shri Halasidhanath Sahakari Sakhar Karkhana Ltd. Shankaranand nagar, Nipani Tq. Chikodi, Dist. Belgaum, Karnataka Pin-59237 Through its Authorized Representative Mr. Balasaheb s/o Malappa Havaldar, Age : 45 years, Occupation : In-charge, Legal Section, R/o As above. ...Appellant. (Orig. Resp. No.1) Versus 1. Sunanda w/o Sanjivan @ Sunil Aghav, Age : 42 years, Occupation: Household work, 2 Ashwini d/o Sanjivan @ Sunil Aghav, Age : 16 years, Occupation : Nil, (Minor under guardianship of mother Non-applicant no.1) 3 Ankush s/o Sanjivan @ Sunil Aghav, Age : 13 years, Occupation : Nil, (Minor under guardianship of mother Non-applicant no.1) All R/o : Agewad Post Waghe Babhulgaon, Tq. Kaij, Dist. Beed. 4 Vishnu s/o Haribhau Bikkad 2 Age : Major, Occu. Agril & Labour Contractor, R/o Naholi, Tq. Kaij, Dist. Beed ..Non applicants. Shri P.R. Patil, Advocate for appellant. Shri N.P. Kale h/f Shri S.K. Naikwade Advocate for respondent no.1. Shri S.S. Thombare, Advocate for respondent no.4. CORAM : K.U. CHANDIWAL, J. Date : 05 th February, 2010. ORAL JUDGMENT :- 1 Heard finally at the stage of admission. 2 The award recorded by the learned Commissioner, Workmen’s Compensation and Civil Judge (Senior Devision) Ambajogai dated 3 rd December, 2008 in W.M.C. No. 19 of 2006 clamping responsibility of payment to the appellant Co-operative Sugar Factory, is impugned. 3 Mr. Patil learned counsel for the appellant submits, the learned judge has lost sight of the basic fact (a) that the provision of Section 12 of the Workmen’s Compensation Act 1923 has pivotal role in the matter and any order that can be passed needs adherence thereto, the liability of appellant was ceased to operate as, carrying sugar cane in the bullock cart by the deceased was not business carried by the appellant Karkhana in terms of Section 12(1) and also it was not within or 3 nearby premises of the Karkhana in terms of Section 12(4) of the above Act. 4 The learned counsel for the original respondent no. 2 Vishnu submits that no interference is warranted in the order under challenge as it was the Principal employer Karkhana to make remittance to the claimants and the contractor / Mukadam Vishnu would not be liable to answer the claim. 5 Section 12(1) of the Act deals with the activities of business. It speaks “execution” or “ordinarily part of the trade or absence of Principal employer”. This in its bracket will necessarily attract, transportation of sugar cane, as it is a raw material for Karkhana to run its business or execution of its business, trade or the activities involved in manufacture of the sugar. 6 The objection raised by Mr. Patil in terms of Section 12(2) is justifiable as the learned judge was required to pass an order in respect of the liability of the contractor and indemnification thereof viz. to the appellant Karkhana concerned. The learned Judge erred in such exercise. 7 Then comes the position of effect of Section 12(4). The terminology used therein in Section 12(4) is - Section 12(4) :- “This section shall not apply in any case where the accident occurred elsewhere that on, in or about 4 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.” Mr. Patil the learned counsel repeats that neither the carrying of sugar cane was within nearby premises or it can not be said the road where accident has taken place was otherwise under the control of appellant Karkhana. 8 Though these arguments are cozy in its nature, it naturally will have to be treated to be wanting for the merits. The term “premises” or “trade” or “business” may not have same meaning which would for the instant case available in interpreting the other statute. Basically the word “trade”, “business” or “premises” used in Work mens Compensation Act have to be understood in the context in which they are referred and the very purpose of the Act. The act contemplate a beneficial legislation to the workers suffering during the course of employment. The term during the course of employment will include transportation of the material required for the Karkhana having carried by the deployed workers in the bullock cart. In this case, the accident has taken place when the deceased Sanjivan alias Sunil Aghav was carrying sugar cane from Akol in the cart and faced toll of his precious life. 5 9 The terminology “premises” referred in Section 12(2), 12(4) which are otherwise under his control or management, will have to be given broader effect. The activities of carrying transportation of the raw material by the employee, the deceased will not obliterate provisions of Section 12(4) to be taken benefit of by the Karkhana. 10 The learned counsel placed reliance to the judgment in the matter of Sarjeras Unkar Jadhav versus Gurindar Singh and another 1990(3) Bom. C.R. 314 and to highlight his contention took recourse to para 11 thereof. “Para 11:- Next question is whether respondent No.2 is liable only for compensation or whether the liability extends to interest and penalty as well. For this purpose it is desirable to refer to the provisions of section 3, 4 and 4-A of the Workmen’s Compensation Act. Section 3 of the said Act provides that if personal injury is caused to a workman by accident... his employer shall be liable to pay compensation in accordance with the provisions of this Chapter, i. e. Chapter II, Section 4 of the Act provides the manner and extent in and to which the amount of compensation is to be awarded vis-a- vis different kinds of injuries or loss of earning capacity. Section 4- 6 A, on the other hand, provides for payment of compensation under section 4 as soon as it falls due. Sub-section (2) of section 4-A provides for payment of admitted liability when there is some dispute. However, this Court is not concerned with sub-section (2) of section 4-A in this case. Sub-section (3) of section 4-A provides for payment of interest if the employer is in default in making the payment simpliciter and for payment of penalty to the extent of 50 per cent if there is no justification for delay in making the payment. It is, thus, evident that the statute has recognized compensation; interest and penalty as three different concepts. The definition of the word “compensation” in section (2)(1) (e) of the Act provides that “ compensation” means compensation as provided for by the said Act. This would mean and refer to compensation payable under section 3 as awarded under section 4. In the circumstances, the argument of Shri Chandrachud to the extend that section 12(1) of the Act makes the principal employer liable for compensation and compensation does not include interest and penalty appears to be correct. Accordingly, it is held that though the principal employer, i. e., the 7 respondent no.2, is liable for compensation under section 12(1), it is not liable for interest and penalty.” The observations are in different context concerning payment and liability of the appellant in respect of the grant of award to the extent of interest. Care will naturally be taken concerning award of interest. 11 The learned counsel took recourse to the judgment in the matter of Garrison Engineer (Projects) versus Guttamma Hanmantdas 1979 (O) BCI 85 . It was case where the workmen employees for Navy department were carried as barracks were to be demolished. At that time, labour expired. This Court held that Navy department can not be held liable for said mishap which took place during activities of removing barracks. No identical eventuality is surfaced in the present case. It is not that Karkhana is not obliged to carry transportation of sugar cane since I repeat carrying sugar cane was a raw material for appellant Karkhana and it could not be said, not to attract the movement of sugar cane. 12 The learned counsel took recourse to the judgment in the matter of Rohini Shamrao Burud versus Hindustan Petroleum Corporation 2005 (6) Bom. C.R. 514. It was the case where workers having left the work place at 8.30 p. m., were moving away from the work place had the unfortunate accident. This court 8 held, it was not during the course of employment. No quarrel on this position of law. 13 The survey of above details illustrates that the learned judge certainly erred in not fixing the liability as against original respondent no.2 Vishnu and also to indicate indemnification thereof. However, appellant can not be exonerated from liability. The other aspect as canvassed are dealt with herein above including the interest. Hence, order. (a) The appeal is partly allowed. The award of Rs.2,76,255/- is to remain in tact. (b) The liability to make payment is joint and several between the original respondents no.1 and 2. (c) The appellant (original respondent no.1) is at liberty to recover the amount of award paid to the claimants from the Contractor / Mukadam Vishnu Haribhau Bikkad (non-applicant no. 4 herein) by following due procedure. (e) Interest @ 9% per annum shall be payable by the original respondent no.2 Vishnu Haribhau Bikkad. To that extent, the liability of appellant shall cease. No costs. (f) Civil Application also disposed of. [K.U.CHANDIWAL, J.] tsk/fa3253.09j 9