SBCMA NO.61/1992– M/s VISHRAM JETHA AND SONS V/S SMT. SHERAJ BAI AND ORS. : JUDGMENT DTD. 28.4.2009 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL MISC. APPEAL NO.61/1992 M/s Vishram Jetha and sons versus Smt. Sheraj Bai and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.J.Gehlot, for the petitioner. Mr.Manoj Bohra, for the respondent. REPORTABLE DATE OF JUDGMENT : 28th April, 2009. JUDGMENT 1. This appeal has bee filed by the Contractor M/s Vishram Jetha and Sons being aggrieved by the award of the Commissioner under the provisions of Workmen Compensation Act, 1923 dated 23.10.1991 whereby the said compensation Commissioner awarded compensation of Rs.58,240/- in favour of the claimants Smt. Sheraj Bai W/O Sh. Mazid Khan on account of death of her son Mukhtyar Hussain alias Guddu while he was working on 28.7.1988 as workman in the course of execution of works contract by the appellant – contractor for the Railways. SBCMA NO.61/1992– M/s VISHRAM JETHA AND SONS V/S SMT. SHERAJ BAI AND ORS. : JUDGMENT DTD. 28.4.2009 2/7 2. The claimants lodged a claim of Rs.6,32,000/- before the Compensation Commissioner and after recording evidence, the Compensation Commissioner held that the workman was in the employment of the present appellant – contractor and determined the compensation of Rs.58,240/- to be paid by the said contractor. 3. Being aggrieved by the said award, the contractor has approached this Court by way of present appeal under Section 30 of the Act under which an appeal lies to this Court on the substantial question of law arising out of the order of the Tribunal or Compensation Commissioner. 4. Mr. J. Gehlot, learned counsel appearing for the appellant submitted that under Section 12 of the Act, the Principal Employer i.e. Railways would be liable to pay said compensation as the appellant - contractor was merely a Contractor executing the said works contract for the Railways and therefore, on the death of the workman, the said principal employer would be liable to pay such compensation. He however, submitted that as per Sub-section (2) and (3) of said Section 12, the principal employer could recover such compensation from the contractor. He relied upon the decision of this Court in the case of Sampat Lal Kothari V/s RSEB and ors. - S.B. Civil Misc. Appeal No.4/1994 decided on 18.10.2002 and submitted that the Workmen Compensation Commissioner had erred in directing the present contractor to pay said compensation. SBCMA NO.61/1992– M/s VISHRAM JETHA AND SONS V/S SMT. SHERAJ BAI AND ORS. : JUDGMENT DTD. 28.4.2009 3/7 5. On the side opposite, Mr. Manoj Bohra appearing for the Railways submitted that the liability to pay compensation under Section 12 of the Act is joint and several of the principal employer as well as the contractor and Sub-section (2) and (3) of Section 12 makes it clear that the compensation can be recovered from the Contractor as well as the Principal Employer as well. He submitted that therefore the Workmen Compensation Commissioner has not committed any error in directing the present contractor; immediate employer, to pay said compensation to the claimants. 6. Having heard the learned counsel and upon perusal of the provisions of the Act and the judgment cited at the Bar, this Court is of the opinion that there is no force in the present appeal filed by the contractor – appellant. A bare perusal of Section 12 of the Act which is reproduced hereunder for ready reference reveals that the liability to pay compensation in the case of death or injury to the workman caused during the course of employment is joint and several of the contractor as well as principal employer in case where the work in question has been given on contract to a particular contractor. The liability to pay compensation has been extended upto the Principal employer also in order to avoid hardship to the claimants in case the contractor fails to pay compensation. Depending upon the terms of the contract, the principal employer has been given liberty to recover such compensation from the contractor and Sub-section (2) therefore, SBCMA NO.61/1992– M/s VISHRAM JETHA AND SONS V/S SMT. SHERAJ BAI AND ORS. : JUDGMENT DTD. 28.4.2009 4/7 talks of the principal employer being indemnified by the contractor. Sub-Section (3) of Section 12 makes it very clear that nothing in this Section shall be shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal. Section 12 reads as under: “12. Contracting: (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 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 to the workman under the employer by whom he is immediately employed. (2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified SBCMA NO.61/1992– M/s VISHRAM JETHA AND SONS V/S SMT. SHERAJ BAI AND ORS. : JUDGMENT DTD. 28.4.2009 5/7 by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner. (3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal. (4) This section shall not apply in any case where the accident occurred elsewhere that on, in or about 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.” 7. The judgment relied upon by the learned counsel for the appellant also takes note of Sub-section (3) of Section 12 in which the learned Single Judge of this Court held that “Under Section 12(3) of the Act read with Rule 39 of the Workmen Compensation Rules, the workman had the choice to recover the compensation from the SBCMA NO.61/1992– M/s VISHRAM JETHA AND SONS V/S SMT. SHERAJ BAI AND ORS. : JUDGMENT DTD. 28.4.2009 6/7 contractor instead of principal.” however, the learned Single Judge in appeal filed by the contractor held that the amount deposited by the appellant contractor if not released be forthwith released to the heirs of the deceased and the appellant is entitled to get reimbursement from the principal employer RSEB. This proposition of law with great respects, is contrary to the clear language of Section 12(2) and (3) of the said Act. The Principal employer is not solely and exclusively liable to pay compensation to the workmen or his heirs in case of death and therefore, the contractor who had approached this Court in the aforesaid case could not be given liberty to recover damages from the principal employer. On the contrary Section 12 allows freedom to the workman to hold liable both the contractor as well as the principal employer. This is so, as aforesaid, to avoid any hardship to the workman that in case the contractor is not able to pay compensation to the workman, the workman has freedom to recover the same from the principal employer, who may be later on indemnified by the contractor. 8. This court also finds no force in the submission made by the learned counsel for the appellant- contractor that in sequence, the Principal employer must be first made liable to pay compensation in question and then be given liberty to recover the same from the contractor. There is nothing in Section 12 which supports this contention of the learned counsel for the appellant – contractor. The principal employer is also liable along with the contractor, but it does SBCMA NO.61/1992– M/s VISHRAM JETHA AND SONS V/S SMT. SHERAJ BAI AND ORS. : JUDGMENT DTD. 28.4.2009 7/7 not make such principal employer exclusively liable to make good the compensation awarded by the Tribunal or the Workmen Compensation Commissioner. On the other hand, it only creates a liability joint and several in nature for the benefit of workman. 9. Consequently this Court is of the clear opinion that the workmen Compensation Commissioner has not committed any error in holding that the present appellant – contractor was liable to pay compensation in question. Accordingly, there is no force in this appeal and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.8 Ss/-