IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.1071 OF 2010 Date:01-03-2011 Between:- The Municipal Commissioner, Kapra Municipality, Kapra, Ranga Reddy District, presently Greater Hyderabad Municipal Corporation, rep.by its Deputy Commissioner. ..Appellant/Opposite Party No.1 And V.Pochaiah and others. .. Respondents/Applicant/Opposite Party Nos.2 and 3 JUDGMENT:- The Civil Miscellaneous Appeal, under Section 30 of the Workmen’s Compensation Act, 1923 (for short, ‘the Act’) is directed against the order dated 01-02-2008 in W.C.No.17 of 2006 on the file of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad, whereunder and whereby, an amount of Rs.3,26,416/- was granted to the dependants of the deceased workman late V.Raju, who died due to electrocution on 17-09-2001, making Opposite Party Nos.1 to 3 jointly and severally liable to pay the compensation. The appellant herein is the opposite party No.1. 2. The applicant, in his application, stated that the deceased, who was a workman employed by contractor-opposite party No.2 (O.P.2) as labourer to execute the work of principal employers-opposite party Nos.1 and 3 (O.Ps.1 and 3), received electric shock during the course and arising out of his employment, on 17-09-2001 resulting in his death. The deceased was working there since long time prior to the date of the accident. On 17-09-2001, while the deceased was erecting the electrical poles near Ahmed Sharif residence under 11 KV HT, the electrical pole touched with the high tension wire due to which the deceased and another labourer got electric shock and fell on the ground and died. Immediately, they were shifted to Vijaya Hospital where the doctors declared the deceased as brought dead. Thereafter, inquest and post mortem were conducted over the body of the deceased. 3. It is the case of the applicant that the deceased died during the course and arising out of his employment with the opposite parties and hence, all the opposite parties are jointly and severally liable to pay the compensation. The deceased was paid wages at Rs.100/- per day and on an average, he used to get Rs.3,000/- per month and that he was aged about 25 years at the time of accident. He claimed Rs.5,00,000/- towards compensation along with interest at 12% per annum and penalty at 50% on the amount of compensation since the opposite parties failed to pay the compensation nor informed the said accident to the concerned Commissioner for Workmen’s Compensation. 3. As O.P.3 did not appear before the Commissioner, he was set exparte. O.P.1 and O.P.2 filed their counters before the Commissioner. 4. O.P.1, in its counter, denied all the averments made in the application and stated that the deceased died during the course and out of his employment due to electric shock on 17-09-2001. He denied that the deceased was employed by O.P.2 for the work of erecting the electrical poles of O.P.1. He denied the reasons stated by the applicant for the delay in approaching the Commissioner and requested to dismiss the application with exemplary costs. 5. O.P.2, in its counter, denied all the averments made in the application and stated that its organization was established in the year 2000. Since then O.P.2 has been engaging contract labourers for construction purposes and erection of electrical poles etc., and that on nominal charges of service commission, he is doing work for others and the said works have been done under the strict supervision of O.P.1 and O.P.3. One Sri D.Krishnaiah @ Kistaiah was employed by O.P.2 as maistry and on the date of accident i.e., on 17-09-2001, no erection work was carried out as it was ‘Pethramavasya’, being a traditional day celebrated in memory of elders’ demise. As such, O.P.2 was fully busy at his home on that day. He was not present at the place of accident on that date and that every day whenever the work was done, the concerned Assistant Engineer or other concerned officer was informed well in advance and accordingly, the power was put off by taking away the fuses and since the said work on the said day was undertaken by the workmen on their own without taking precautionary steps, the said accident occurred. 6. O.P.2 admitted that one Sri D.Krishnaiah @ Kistaiah and another workman met with an accident while erecting the electrical poles under 11 KV high tension and admitted their death, and the wage and age of the deceased as claimed by the applicant. O.P.2 stated that he has paid Rs.70,000/- to the dependants of the deceased and also met the funeral expenses and that he was compelled to purchase a plot of 60 sq.yards in the name of the wife of the deceased and it was done on humanitarian grounds. O.P.2 further submitted that his duties as contractor are to supply labourers and execute the works under the strict supervision of O.P.1 and O.P.3 and submitted that under Section 12(1) of the Act, O.P.2 is not liable to pay compensation. O.P.2 further submitted that if the claim application is allowed, he is not liable vide case law i n Bala Mallamma vs. Registrar, Osmania University, Hyderabad[1] (2) TAC 182 (AP) and for the reasons stated above, O.P.2 requested to dismiss the application against him. 6. Basing on the above pleadings, the following issues were framed by the Commissioner for consideration: “1. Whether the deceased workman, late Sri V.Raju met with accident on 17.09.2001 and died due to electrocution that occurred during the course and out of his employment as labourer on under the employment of the opp.parties? 2. If yes, who are liable to pay compensation to the dependants of the deceased? and 3. What is the amount of compensation entitled by the dependants of the deceased?” 7. On behalf of the applicant, A.W.1 was examined and Exs.A-1 to A- 3 were marked. On behalf of O.P.2, R.W.1 was examined and Exs.R-1 to R-3 were marked. No oral or documentary evidence was let in on behalf of O.Ps.1 and 3. 8. For better appreciation, the parties are referred to as they are arrayed before the Commissioner, Workmen’s Compensation. 9. Now the point for determination is whether the order of the Commissioner is correct, legal and proper and whether the applicant is entitled for the compensation? 10. It is not in dispute that the deceased Raju was engaged as a labourer to erect the electrical poles by O.P.2. It is also not in dispute that the contract work for erection of electrical poles was given to O.P.2 by O.P.1. It is the case of the applicant that on 17-09-2001, while the deceased and another labourer were discharging their duties, the deceased got electrocuted and died on the spot. 11. The contention of the learned counsel for the appellant herein/O.P.1 is that as per the terms and conditions of the agreement- Ex.R-1, the contractor has to indemnify all the loss and therefore, the appellant/O.P.1 is not liable to pay any compensation and that there was negligence on the part of the deceased in climbing the electrical pole without shutting down the power and as such, the applicant is not entitled to any compensation. The learned counsel for the appellant/O.P.1 further stated that though the appellant/O.P.1 has not adduced any evidence to show that the incident in question has taken place due to the negligence of the deceased himself, but it can be seen from the evidence available on record that there was negligence on the part of the deceased resulting his death. 12. A specific plea has been taken by O.P.2 to the effect that 17- 09-2001 happened to be a Pethramavasya, he instructed the labourers not to attend any work on that day and that without his permission, the labourers started the work for erection of pre-cast electrical poles on their own accord. Under Section 3(1) of the Act, if a personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter-II of the Act. There should not be any willful disobedience on the part of the workmen to an order expressly given or a rule expressly framed for the purpose of securing their safety or the willful removal of any safety guard or other device, which they knew to have been provided for the purpose of securing their safety. Section 3 has no application to the present facts of the case because it is a case of death of a workman arising out of and in the course of employment. Therefore, the negligence is only applicable in case of injuries. So, the contention that negligence has to be established by the applicant cannot be accepted. The only condition precedent for claiming compensation under the Act is that if a workman died by accident arising out of and in the course of his employment, then the employer is liable to pay the compensation. Therefore, in this case, while the deceased and another were erecting the pre-cast poles, the deceased was got electrocuted accidentally and died. Hence, all the opposite parties are jointly and severally liable to pay the compensation. 13. The other contention of the learned counsel for the appellant is that in pursuance of the agreement-Ex.R-1, the contractor has to indemnify all the losses to the Corporation. Even if the contractor and the Municipality entered into the agreement and if there is any violation or liability as per the terms of the contract, the appellant has to work out his remedies against the contractor in terms of the agreement, but not in this proceeding in view of Section 12 of the Act. The appellant is the principal employer because where any person in the course of or for the purpose of trade or business contract with any other person, he can be termed as a principal employer and the contractor will be referred to as an employer. Therefore, the two conditions required under Section 12 of the Act have been established and the Commissioner rightly awarded the compensation. 14. Learned counsel for O.P.2 contended that the original of Ex.R- 1 has not been acted upon and therefore, he is not bound to the terms and conditions of the contract. Because that issue cannot be decided in this case, it is left open whether it is a valid contract or not. 15. The Civil Miscellaneous Appeal is dismissed leaving open the remedies available to the appellant under law. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU 1st March, 2011 AMD/KSP [1] (2) TAC 182 (AP)