1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.250 OF 2009. The Managing Director, Indapur Co-operative Sugar Factory Ltd., Now known as Karmayogi Shankarrao Patil Co-operative Sugar Factory Ltd., Mahatma Phule Nagar, Indapur, Tq. Indapur, Dist. Pune Through it’s Legal Advisor, Shri.Ramdas S/o Mahadeo Narute, Aged 45 years, Occ : Legal Advisor, R/o Indapur, Tq. Indapur, Dist. Pune. APPELLANT VERSUS 1. Shri. Vilas S/o Uddhav Devare Age : 25 years, Occ : Labour, R/o Dhotri, Tq. Paranda, Dist. Osmanabad. 2. Kum. Laxmi D/o Vilas Devare Aged 2 years, Minor U/G. of her Father i.e. Shri. Vilas S/o Uddhav Devare Age : 25 years, Occ : Labour, R/o Dhotri, Tq. Paranda, Dist. Osmanabad. 3. Shri. Laxman S/o Malhari Shinde Aged adult, Occu : Business, R/o Chinda Devi, Tq. Indapur, Dist. Pune. 4. Achyut S/o Sopan Deokar Aged adult, Occu: Agri., R/o Chinda Devi, Tq. Indapur, Dist. Pune. RESPONDENTS 2 ------------------------------------------------------------------------------------------------------- Mr.Y.S. Choudhari, Advocate for the appellant. Mr. A. S. More, Advocate for the Respondent Nos.1 and 2. Mr. V.V. Kabade, Advocate for the Respondent Nos.3 and 4. ------------------------------------------------------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 16th September, 2009. ----------------------------------------------- ORAL JUDGMENT : On 09.02.2009, the notice was issued in the instant matter indicating that, if possible, this Appeal would be considered for final disposal at the stage of admission itself. Accordingly, the Record and Proceedings were also called. On 22nd August, 2009, the parties appeared before this Court and agreed that, the matter can be decided finally, at the stage of admission and therefore, they were granted liberty to file all documents upon which they seek to place their reliance. Accordingly, the matter is taken up today with the consent of the parties. Admit. 2. This is an appeal filed by the original respondent no.1 challenging the Judgment and Award dated 18th April, 2008 passed by the learned Commissioner, Workmen Compensation and the Civil Judge, Senior Division, Osmanabad in W.C. A. No.13/2004. By this Judgment and Award, the original claimants, are held entitled to recover compensation of Rs.2,67,252/- from the appellant and respondent nos.3 and 4 herein, jointly and severally, along with interest at the rate of 12% p.a. from the 3 date of death of deceased Vandana, till realisation of amount. It has been further directed that, the appellant shall be entitled to recover an amount of Rs.5,000/- from the respondent nos.3 and 4 jointly and severally towards penalty. It has further been directed that if the amount of interim compensation is already paid to the claimants, it shall be deducted from the compensation amount. 3. The Respondent Nos.1 and 2 herein are the original claimants, who filed W.C.A. No.13/2004, in which the appellant joined as respondent no.1. The claimants, who are legal representatives of the deceased- Vandana, alleged that the deceased was engaged as labourer by the respondent No.4 Achyut Sopan Deokar. It was alleged that, the sugar cane was cut for the purposes of business of the appellant and the same was transported in tractor owned by the respondent no.3 Laxman Malhari Shinde, to the sugar factory run by the appellant. It was alleged that, Vandana died due to snake bite when she was loading sugar cane, in the tractor of the respondent no.3 on 10.11.2002. The claimants alleged that, Vandana was aged about 22 years and she died in the course of employment with the appellant. Claimants therefore claimed compensation of Rs.3,00,000/- along with interest at the rate of 15% p.a. 4. The appellant society filed its written statement and resisted 4 the claim. It was the stand taken by the appellant society that the deceased was not their employee and there existed relationship as `Master and Servant’ and `Employer and Employee’ between the deceased and the appellant. It has been alleged that, the deceased was an employee of Mukadam (Contractor), who engaged her for cutting of sugar cane. Thus, the claim was opposed only on the ground that, there existed no relationship of `Master and Servant’ and hence, the claimants were not entitled to get any compensation. 5. The claimants led evidence and examined Vilas Devare, the claimant no.1 himself at Exhibit-27. The copy of the complaint was produced at Exhibit-38. The school leaving certificate was produced at Exhibit-43 and the postmortem report was produced at Exhibit-42. The appellant examined one witness Ramdas Mahadv Narute working as Legal Officer with the appellant. The learned Commissioner, after taking into consideration the entire evidence brought on record, recorded the findings that the appellant has failed to prove, Mukadam engaged deceased- Vandana as labourer. It was further held that, the deceased Vandana was engaged by the appellant for cutting and loading of sugar cane in the field of the respondent no.4 herein. It was further held that, the deceased was not provided with any safety measures and she died due to snake bite during the course of employment with the respondents. The learned 5 Commissioner therefore has held that the claimants are entitled to recover the compensation of an amount of Rs.2,67,252/- along with penalty of Rs.5,000/- and interest at the rate of 12% p.a. on the amount of compens tion from the date of death of deceased till its realisation. 6. Shri. Y.S. Choudhari, the learned Counsel for the appellant has contended that, the findings recorded by the learned Commissioner that, there exists the relationship of employee and employer between the appellant and the deceased Vandana is not supported by any evidence, available on record. He further urged that, the findings of the learned Commissioner that, the deceased was earning daily wages of Rs.70/- to Rs. 80/- is also not supported by any evidence on record. He has therefore urged that, the findings recorded on both these aspects by the learned Commissioner are perverse and this is substantial question of law which arises out of the impugned judgment and award. Shri.A. S. More, the learned Counsel appearing for the Respondent No.1 and 2-claimants on the other hand opposed the contentions and has pointed out evidence on record. Shri. V. V. Kabade, the learned Counsel appearing for the respondent no.3 tractor owner and the Respondent no.4-owner of the field has urged that the learned Commissioner ought not to have held the respondent nos.3 and 4 liable jointly and severally along with the appellant to pay compensation. 6 7. With the assistance of the learned Counsels appearing for the parties, I have gone through the evidence of the claimants as well as evidence of Shri. Ramdas Narute, the Legal Officer employed by the appellant. The witness Ramdas has stated in Affidavit that there was no relationship of `Master and Servant’ between the deceased and the appellant. He has further denied that the deceased was getting Rs.70/- to Rs.80/- as daily wages. In cross examination, the said witness has stated that, there was contract in respect of cutting of sugar cane and its transportation to the appellant factory in between the appellant and the Mukadam-contractor. However, although he stated that, the record of such contract was available, showed his enability to produce the same. He has further stated that, no safety measures are provided by the appellant to the labourers engaged for cutting of sugar cane. He has further stated that Mukadam was paid for his job of cutting of sugar cane and transportation of it, to the factory of the appellant. In the light of this evidence, the sub- section (1) of section 12 of the Workmen’s Compensation Act, 1923 regarding the contract is required to be seen and same is reproduced below:- “ 12(1):- Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other 7 person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.” 8. The evidence has come on record that, the appellant has for the purposes of its trade and business of manufacture of sugar, entered in to contract with Mukadam, for cutting of the sugar cane from the field of the respondent no.4, and the respondent no.3 who is the owner of the tractor, has been engaged for transportation of the sugar cane from the field of the respondent no.4, to the factory of the appellant. It is also not in dispute that the deceased-Vandana died due to snake bite, while she was loading the sugar cane in the tractor. It is thus apparent that the provisions of section 12(1) quoted above are squarely attracted and the appellant becomes principal employer and is liable for payment of compensation. 9. The learned Counsel for the appellant has relied upon the decision of the learned Single Judge reported in 2007(5) All M.R. 783 (Smt. Jaidevi Ganesh Bind & ors. V/s Union of India) in which it was 8 held that, the evidence was not showing any contract of employment with the deceased. In this reported judgment apparently the question of principal employer’s liability under section 12 of the said Act, was not at all involved and hence the said decision is of no help to the appellant. The learned Counsel appearing for the appellant relied upon another decision of the learned Single Judge of this Court reported in 2005(1) Mh. L.J. 179 (Arjun Gangappa Kore V/s Nirmal Bhagchand Bothra and others) to urge that, where the Commissioner does not consider the legal evidence on record and proceeds to decide the matter without there being any foundation in the pleading and or evidence, the substantial question of law arises. There can not be any dispute about this proposition. However, in the instant case, as pointed out earlier, there is ample evidence on record supporting the findings recorded by the learned Commissioner in the impugned Judgment and Award. At least the evidence on record is enough to take such possible view. 10. In view of the above, I do not find any substantial question of law which arises for consideration in this matter and same is therefore dismissed without any order as to costs. (R. K. DESHPANDE ) JUDGE GAS/fa250.09(1)