IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.74 of 2011 Date of Decision: November 30, 2011 District Manager, Hafed, Karnal and others …Appellants Versus M/s Gangotri Security Services and others … Respondents CORAM : HON’BLE MR. JUSTICE MOHINDER PAL Present: Mr.Ravinder Malik, Advocate for the appellants --- MOHINDER PAL, J. This appeal is directed against the order dated 31.3.2010 passed by Commissioner under Workman Compensation Act, 1923 (hereinafter referred to as the ‘Act’), whereby the claimants (now respondents no.2 to 5) were awarded compensation to the tune of Rs.2,40,098/- along with interest. The brief facts necessary for the disposal of this appeal are that Kapoor Singh was working as Peon cum Chowkidar with the appellant no.1 at a monthly salary of Rs.2500/- per month. There was contract/agreement dated 12.06.2002 entered into between the appellants and respondent no.1 for providing services of watch and ward at various storage points including the one at Assandh Distt. Karnal. As per this agreement there was a condition mentioned at Sr.No.11 that in case of any injury/mishappening to the security personal the Agency will pay the compensation to the security guard as per law. On 23.05.2003, Kapoor Singh was on duty during night 1 FAO No.74 of 2011 time. When he came into contact with wet gunny bags resulting into electric current and died at the spot. F.I.R. No.38 dated 24.05.2003 under Section 304-A IPC was registered against Ram Kishan at Police Station Assandh. The appellants appeared before the Commissioner and filed written statement and pleaded that as per contract the liability to pay the compensation amount to security guard was that of agency (now respondent no.1). Accordingly, the claimants-respondents no.2 to 5 filed an application under Order 1 Rule 10 CPC for impleading the agency (respondent no.3) as a party and that application was accepted. Thereafter, notice to respondent no.3 was given, who did not appear in the case and refused the accept the service of summons. Respondents no.1 and 2 also failed to appear in the proceedings. They all were proceeded against ex-parte. The claimants/respondents no.2 to 5 led ex-parte evidence in the case and the Commissioner awarded the compensation to them to be paid by the respondents vide order dated 31.03.2010 as stated above against which the present appeal has been filed which is now meant for disposal. Vide order dated April 01, 2011 passed by this Court, notice of motion was issued qua respondent no.1 only while the appeal of respondents no.2 to 5 who were claimants was dismissed. I have heard learned counsel for the appellants and have gone through the records available on the file including the written statement filed by the appellants along with agreement/contract dated 12.06.2002 produced by the appellants which is made part of the file. The short question involved for determination in this appeal is as to whether the principal employer or the appellants are 2 FAO No.74 of 2011 liable to pay the compensation amount as awarded by the Commissioner. While arguing before me, learned counsel for the appellants has submitted that the Commissioner has failed to appreciate that there existed no relationship between Kapoor Singh (since deceased) and the appellants and as per contract dated 12.06.2002, the respondent no.1 was responsible to make the payment of compensation amount. I have gone through the copy of the written statement filed by District Manager, HAFED, Karnal filed before the Commissioner as well as the contract dated 12.06.2002 referred to above. As per terms and conditions of the agreement dated 12.06.2002 it was clearly mentioned in condition no.11 that in case of any injury/mishappening to the security personal the Agency will pay the compensation to the security guard as per law. Respondent no.1, who is principal employer failed to appear in the case before the Commissioner as well as in this Court inspite of notice issued to him. It is also a fact that as per condition no.9 of the agreement dated 12.06.2002, the period of contract was mentioned as from 16.05.2002 to 15.05.2003. Admittedly, the death of the deceased as per order of the Commissioner had taken place on 25.05.2003. In this appeal, the Commissioner has not given any finding as to which of the respondents is liable to pay the amount of compensation. The appellants have only sought modification of the order of the Commissioner with regard to liability. Keeping in view the facts and the circumstances of the case, I am of the view that as per agreement/contract dated 12.06.2002, the primary liability to pay the amount of compensation is 3 FAO No.74 of 2011 that of respondent no.1 and not the appellants. Accordingly, the order of the Commissioner dated 31.03.2010 is modified. It is stated that the amount of compensation has since been deposited by the appellants before the Commissioner. The appellants can recover the same from respondent no.1 subject to the proof of the contract dated 12.06.2002 showing the date of the deceased under the contract on the relevant date in existence. With the above modification, the appeal stands disposed of. (MOHINDER PAL) November 30, 2011 JUDGE p.singh 4