1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL UNDER WORKMEN'S COMPENSATION ACT NO.1 OF 2001. WITH CROSS OBJECTION NO.2 OF 2002 IN APPEAL UNDER WORKMEN'S COMPENSATION ACT NO.1 OF 2001. 1. Shri Eknath P. Kamble, major, married, mason, residing in H/No.956, Pequena Anjuna, Anjuna, Bardez, Goa. .... Appellant Versus 1. Smt Janqui Nilu Kamble, major, housewife, residing at Modlovaddo, Parsem, Pernem, Goa; 2. Shri Marcel D'Cunha, S/o Sebastian D'Cunhja major, landlord, residing at Khobrawado, Calangute, Bardez, Goa ... Respondents. Mr. R. Satardekar, Advocate for the appellant. Mr. A. V. Nigalye, Advocate for the respondent No.1. Mr. G. K. Sardessai, Advocate for the respondent No.2. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT: 2 nd MARCH, 2 009. DATE OF PRONOUNCING THE JUDGMENT : 21 st MARCH, 2009 . JUDGMENT : 1. This appeal has been preferred by the opposite 2 party No.1 against the award passed by the Workmen's Compensation Commissioner. 2. The facts giving rise to this appeal, are as follows: The respondent No.1's son was working as a workman with opposite party i.e. the present appellant. The appellant used to take contract of construction of well and he had, therefore, engaged the deceased Santosh as a mason and on the date of the incident i.e. 08.04.1987, said Santosh was working as a mason in the well, which was to be constructed for opposite party No.2 i.e. the respondent No.2. At the time of the death, said workman Santosh was 22 years' old and was being paid wages of Rs.40/- per day. On 08.04.1987, while the work of construction of well was going on, the part of the well suddenly collapsed and Santosh was buried under the debris. He died of suffocation. His mother/ the respondent No.1 filed an application. She contended that the appellant had engaged her son Santosh and the appellant used to take contract of construction of well and as such he was liable to pay the compensation. The later respondent No.2 is the owner of the well, which was under construction, was added as party. After recording the evidence, the 3 learned Workmen's Compensation Commissioner found the wages of the deceased were Rs.40/- per day. The deceased was engaged as a workman by the appellant as a contractor and holding so, the liability to pay the compensation, was fixed on the opposite party No.1 i.e. the present appellant and being aggrieved by that award, this appeal has been preferred. 3. I have heard the learned Counsel for the appellant and the respondent. The appeal is admitted on the following substantial questions of law : (i) Whether it was mandatory for the Trial Court to frame the issues and whether the order is vitiated because of the fact that the issues were not framed ? (ii) Whether the respondent No.2, the owner of the well in the instant case, can be held to be liable under Section 12 of the Workmen's Compensation Act as principal employer ? 4. The learned Counsel for the appellant, contends before me that the order passed by the Trial Court is vitiated as it did not frame any issues while deciding the application and, therefore, the matter needs to be remanded back to the 4 Trial Court for framing issues and rendering a fresh decision. The order of the Trial Court, does disclose that the Trial Court did not frame issues as such. My attention was drawn particularly to rule 28 of Workmen's Compensation Act. Rule 28 reads as follows : 28. Framing of issues – (1) After considering any written statement and the result of any examination of the parties, the Commissioner shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend. (2) In recording the issues, the Commissioner shall distinguish between those issues which in his opinion concern points of facts and those which concern points of law. 5. There is no doubt that the Trial Court, dealing with the application, needs to frame issues and answer them. The object of framing issues, is always to concentrate the attention of the parties to the real controversy between the parties and also as regards the burden of proof. The question, however, is whether in all cases it can be said that since the issues are not framed, the Trial is vitiated or there 5 is no proper trial and decision. To my mind, simply because the issues were not framed, it cannot be said that there was no proper trial. The order of the Trial Court as well as evidence tendered by the parties, would always disclose whether the parties were aware as to what they were to prove and what question of law, was involved and on what questions they were at issue. If that can be so gathered from the order of the Trial Court and evidence tendered, there may not be any need to remand the matter to the Trial Court to frame issue and decide the matter afresh. This Court in Sk. Ibrahim V. Sk. Mehmood reported in AIR 2003 Bombay 357, has observed as follows : “10. It is well settled law that when the parties fully aware of their respective cases, lead all the necessary evidence not only in support of their case, but in refutation of the claim of the other side, non-framing of the issues cannot be held to be a ground for remanding the case unless it is fatal to the case or resulted in mistrial which vitiates the proceedings. Because if the evidence which has been led before the trial Court is sufficient to reach a right conclusion and neither party has raised any objection to the framing of the issues before the trial Court, there was no reason why the first appellate Court should have remanded the matter for fresh trial by giving suo 6 motu directions to the parties to amend the pleadings which parties themselves have not sought. This is not permissible as a public policy for the reason that it is for the parties to put up their case in a proper manner and once they undergo the rigour of the trial, the findings should not be interfered with by remanding the case.” 6. In view of this decision, by which I am bound, I need not to deal with the decision in K. S. Modi Versus Bichitrananda reported in 1974 Labour Industrial Cases 954. 7. Let us see whether the Trial Court has dealt with the issues which arise, but which were not actually framed. Mr. Satardekar submits that at least three main question, needed to be decided and, therefore, issues were necessary. The first is with regard to the liability of the respondent No.2 and whether he was principal employer. The second was whether the applicant was dependent on the deceased and the third what were the actual wages paid to the deceased. 8. After having gone through the judgment, it appears that the Trial Court did deal with these aspects quite elaborately. I quote here the observations of the Trial Court : 7 “The issue therefore was as to whether the Opp. Party was the employer and liable to pay or not. The Opp. Party No.2 Mr. Marshal D'Cunha in his deposition stated that he knew the Opp. Party No.1, Mr. Eknath Kamble. That he had paid an advance of Rs.10,000/- to Shri Kamble by Cheque on 15.2.1987 and came to know about the accident later on. That he has already given the statement to the Police on 9.4.1987 wherein he has stated that he had given a contract to Mr.Eknath Kamble to construct a new well and accordingly Mr.Eknath Kamble along with his workers had started the construction of said well. There is nothing to prove that the deceased workman was employed by anybody other than the Opp. Party No.1. It is established that the deceased workman was employed by Opp. Party No.1 and therefore Opp. Party No.1 shall be liable to pay the Compensation. Hence it is concluded that the deceased workman having died in the course of and arising out of employment and having been employed by Opp. Party No.1, the applicant is entitled for Compensation.” 9. The Court further observes as under : “In the course of hearing, the applicant Smt. Janqui Kamble stated that the deceased Santosh Kamble was her son. That Opp. Party Eknath Kamble is taking the contract of construction of 8 houses, wells, etc. and her son was employed by him. That he was working in connection with the construction of well at Calangute on 8.4.1987. The deceased let for the work as usual to report at the worksite in connection with the construction of a well at Calangute as he was engagedby the Opp. Party. He did not come back in the evening and next day morning she was informed about his death while working in the well. The two workers by name S/Shri Sahadev and Dattaram were the co-workers and her son was paid Rs.40/- per day as was informed to her by the deceased. That she was dependent on the earnings of her deceased son as her two elder sons are married and stay separately. That her husband died 15 yeas back and that She was looked after by her deceased son. She admitted the fact that she was paid Rs.5000/- by the owner of the well. She also submitted the death certificate of her deceased son as also the death certificate of her husband and stated that an amount of Rs.5,000/- has been spent by her to perform the religious formalities of her deceased son. In her cross-examination, she denied all the suggestions of the Opp. Party.” 10. The observations clearly go to show that the Trial Court did decide the controversy on the above questions. The evidence was also available before the Trial Court in that regard. It is, therefore, clear that both the parties knew on 9 what points they were at issue and have accordingly led the evidence and the Court in fact decided the matter. I, therefore, do not find any need to remand the matter back to the Trial Court. 11. Shri Satardekar submits that the Trial Court had fallen in error in exonerating the respondent No.2. If Section 12 of the Workmen's Compensation Act is read correctly, the respondent No.2 cannot escape the liability. He submits that the respondent is, in fact, the principal employer and, therefore, should have been held liable. He submits that assuming that the respondent No.1 is a contractor, still if Section 12 is read, the respondent No.2 becomes a principal. The submission is not correct. In all cases, such an interpretation cannot be put. Such an interpretation can be put only when such a work is ordinarily part of trade or business of the principal employer. The respondent had got dug the well in his private house for private use. Therefore, digging of well, cannot be said to be a part of his business or trade. In the circumstances, he cannot be treated as a principal within the meaning of Section 12. Shri Satardekar had relied on a decision in Bala Mallamma V. Registrar, Osmanta University, Hyderabad reported in 2001 Labour 10 Industrial Cases 1326, Andhra Pradesh High Court observes, as follows : “16. This judgment reiterates a principle of interpretation and the principle is that the meaning of the word must be gleaned from the context in which it is used. Meaning assigned to a word in a particular Act may mean one thing and the meaning of the same term may give a different meaning when used in a different Act. Therefore, the word 'trade' or 'business' as used in this Act have to be understood in the context in which this Act has been enacted. Basically the Act has been enacted to provide compensation to the workers suffering during the course of employment. It is also the purpose of the Act that they should get speedy remedies and it appears that the intention of enacting the Section 12 of the Act was only to ensure that compensation is paid by the principal expeditiously and if this purpose of the Act and the provision are kept in mind, then the word 'trade' or 'business' may not have the same meaning which it would have, for instance, when used in interpreting a taxing statute. If the plea of the University is accepted that they are engaged in imparting education, conducting examinations and conferring degrees only and cannot be termed to be doing any business or trade and hence they are not liable to pay compensation, then any person engaged for similar activity by any Government Department, 11 any University, any hospital, if faced with an accident, would not be able to get compensation in terms of Section 12 of the Act although such a person would be a workman under the Act. Similarly if an individual who wants to construct a residential house of his own engages a person for construction of the house and if such a person faces an accident during the course of the building of the house, he would be remediless under the Act. ” 12. The facts of the reported case are different. Even otherwise, I respectfully disagree with the proposition as laid down. To my mind, unless activity of the Principal is treated as commercial activity, he cannot fall under Section 12 at all. If the interpretation as put in Bala Mallamma's case is to be accepted, then, even a private person, who may get his house repaired or constructed through contractor, may fall under Section 12 because he too cannot live without a house. 13. Shri Satardekar relied on another decision of Rajasthan High Court in Asst. Engineer GWD, Banswara V. Rakma Bhil reported in 2001 Labour Industrial Cases 2558. In the reported case, the principal was the Ground Water Development Department of Government, which was laying a pipeline. Laying of pipeline can be said to be the main activity of the department, which it could not carry out 12 without the aid of the contractor and, therefore, the department was rightly held to be the principal. That was the main business of the ground water development department. Hence, on facts, this decision has no bearing on the case at hand. 14. Shri Satardekar had raised contention that the decision of the Court below, that wages were Rs.40/- per day, was not correct and also that the claimant is the dependent. The Trial Court has held that the claimant was dependent on the deceased and also found, as a fact, that wages were Rs.40/- per day. Both the findings are findings on facts. It is not that they are based on no evidence at all. There is evidence available. As such those findings of facts, have assumed finality. What can be urged is only substantial questions of law. As stated above, the propositions are the questions of fact, which cannot be gone into in this appeal. The substantial questions of law as formulated, are answered accordingly. The appeal is dismissed. No order as to costs. 15. Cross objection was not pressed by Mr. Nigalye, the Counsel for the appellant. In view of this, the cross objection is also dismissed. C. L. PANGARKAR, J. SMA 13