t .^ ^ (V c^] IN TH6 HIGH COURT OF JUbICATURE AT BILASPUR Ml 5C ^S^T APPEAL N0.0 \\^ OF 2010 APPELLANT: N^n-applicant No.l Avp;-"^ r^^"'Ly:'. ^^ ^\ •^^^ ^'"^..••" .^'' RESPONDENTS: Claimants l^aiiG^ Manish Agarwal, son of Shri Vedprakash Agarwal, aged about 21 years, resident of Bondkala, P.S. Bondkala, bistrict Bhiwani (Haryana), presently residing at Plot No.161, Orrisa-Bengal Road Carrier, T.P. Nagar, Korba, bistrict Korba (CG) Vs 1. Smt. Phoolmet, widow of Late Jageram, aged about 24 years. 2. Minor Rakheram, son of Late Jageram, aged about 5 years. 3. Kum. Noni Bai, daughter of Late Jageram, oged about 3 years. 4. Minor Naresh Kumar, son of Late Jageram, aged about ^- L. ^f) years. No.2 to 4 are minors through their natural guardian mother Smt. Phoolmet Bai, widow of Late Jageram. 5. Sukhlal, son of Malikram, aged 50 yeors. ^ All residents of Village Pendrimahua, P.S. Dharamjaigarh, District Raigarh, presently residin9 at behind Sector6/C, Padimaar Bhadrapara, Balco, Tehsil and District Korba (CG) 6. M/s Orissa Bengal Road Carrier Pvt. Limited, Plot No.161, Orrisa-Bengal Road Carrier, T.P. Nagar, Korba, District Korba (CG) ^rpp^iAvat'/ftc/ ^15-<f{0 /—- _-„ APPEAL UNDER SECTION 30_O^THE WORKMEN'S COMPENSATION ACT. 1923 Non-aDDlicant No.2 B&. . 1 HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (Q No. 1128of 2010 Appellant Manish Agarwal Versus Respondents Smt. Phoolmet & others APPEAL UNDER SECTION 30 OF THE WORKMEN'S COMPENSATOIN ACT, 1923 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri G. Minhajuddin, JJ Shri B. P. Sharma, Advocate for the appellant. Shri Anil Gulati, Advocate for the respondents No. 1 to 5. None for the respondent No. 6, though served. ORDERJOral) ( Passed on this 13th day of October, 2011 ) Per I. M. Quddusi, J. The list is being revised. No one is present for the respondent No.6 though served. Therefore, we have proceeded ex-parte against thc respondent No.6. This appeal involves following substantial question oflaw : (i) Whether in the facts and circumstances of the case the appellant, who was a Cashier in the establishment of the respondent No. 6 employer, could be held responsible to pay the compensation to the dependents (claimants) of the deceased, who was deputed to work in the truck for unloading the heavy wire bundles, when the truck was under control ofthe respondent No.6 ? (ii) Whether in the facts and circumstances of the case there was any relationship of master and servant between the appellant and the deceased, when the appellant was only a Cashier in the establishment of the respondent No.6 and was employee of the respondent No.6, could be established ? ».^s ife' :^ i M2: ^IIMMWI^^ 6. (iii) Whether in the facts and circumstances of the case and the evidence on record the appellant could be held liable to pay compensation from his own pocket ? This appeal has been filed against the impugned judgment and order dated 22.06.2010, passed by the Commissioner, Workmen's Compensation, Korba in Case No. OS/WCAct/2009/Fatal, awarding a sum of Rs. 4,15,960/- to the claimants, holding the non-applicant No.l/appellant as liable to pay the amount of compensation. The, brief facts of the case, in nutshell, are that on 20.3.2008 deceased Jageram along with other workers (Hamals) was unloading aluminum wire bundles from the Truck, bearing registration No. C.G. 04/2473. At that time one bundle slipped and fell down on the body of the deceased. In that accident Jageram received grievous injuries and died on 21.3.2008 during the course of treatment. The truck was owned by Manish Aganval of M/s Orrisa Bengal Road Carrier Pvt. Limited. The Criminal Case No. 458/2008 relating to the accident was pending in the Court of Chief Judicial Magistrate, Korba against Manish Agarwal. The legal heirs/dependents of the deceased Jageram filed an application under Section 22 of the Workmen's Compensation Act, 1923 for award of compensation. Learned Commissioner, having regard to the facts situation and the evidence on record, passed the impugned award directing the appellant/non-applicant No.l (Manish Aganval) to pay a sum of Rs. 4,15,960/- to the claimants. We have heard learned counsel appearing for the parties and perused the records. 8. The appellant/non-applicant No.l has filed this appeal challenging the impugned award so far as the Commissioner has fixed the liability upon the appellant only to pay the amount of compensation on the ground that the appellant, being incharge of the cash was paying the wages to the deceased/workman and as such the deceased was in the employment of the appellant. 9. The appellant in his written statement has specifically stated that he was working as Cashier and was a salaried employee of the respondent No. 6 i.e. M/s Orrissa Bengal Road Carrier Pvt, Limited and only this much was admitted that the deceased Jageram was unloading the truck belonging to the respondent No.6, bearing registration No. C.G. 04/2473 by removing the heavy bundle from the same. The allegations leveled against the appellant were denied by the respondent No.6 in its written statement and it was submitted that the appellant was working as Cashier in the establishment of the respondent No.6. There were other pleas taken in the written statement by the Respondent No.6 but we are not concerned at the moment with the same. 10. The Commissioner in his impugned award has held that the appellant was liable to pay the compensation. II. When the respondent No.6 had admitted in its written statement that the appellant was a salaried employee in their establishment and the truck on which the deceased was deputed belong to the respondent No.6, there was no occasion for the Commissioner to give a finding holding the appellant as liable to pay the amount of compensation, who was only an employee of the respondent No.6, who was the employer not only of the appellant but also of the deceased. 12. Sub clause (e) of Section 2 of the Workmen's Compensation Act, 1923 defines aemployer?? according to which "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of ser^ice or apprenticeship, means such other person while the workman is working for him. 13. In the written statement of respondent No.6 it has been stated that a Chief of the group of workers (Hamals), namely Ramesh was performing the work of super^ision regarding unloading of the truck where the deceased was deputed. Further, there was a Manager of the transport company i.e. respondent No.6, who had referred the deceased, before his death, to CIMS hospital at Bilaspur, where he died. In our opinion, looking to the averments made in the written statement of the respondent No.6, the appellant should not have been held responsible for the payment of amount of compensation to the claimants. 14. In view of the above the appeal deserves to be allowed and the same is allowed. The finding given by the Commissioner in para 12 of the impugned judgment and order, imposing liability upon the appellant to pay the amount of compensation to the claimant is set aside. However, with regard to fixation of the liability to pay the amount of compensation on the basis of the averments made in ^ the written submissions by the respondent No.6 as well as the ^ evidence available on record, the matter is liable to be remanded back to the Commissioner. 15. Accordingly, the appeal is allowed. The appellant is exonerated from his liability to pay the amount of compensation. The matter is remanded back to the Commissioner, Workmen's Compensation to consider and decide the liability to pay the compensation, afresh, in the light ofthe observations aforesaid. 16. The amount, if any, paid by the appellant shall be permitted to be withdrawn. 17. The parties shall appear before the Commissioner on 24th November, 2011. However, the Commissioner shall issue notice to the respondent No.6 who is non-applicant before him. 18. The lower courts record shall be sent back without delay. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Thakur