FA/1347/1988 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1347 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== AHIR HAMIRBHAI MENSI Versus GOVIND KESHAVJI SUTHAR AND ANOTHER ====================================== Appearance : MR PM RAVAL for Appellant. MR PM THAKKAR for Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 05/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant-original respondent has challenged judgment and order of Commissioner of Workmen Compensation, Junagadh dated 31-8-1987 passed in Workmen Compensation Case No.79 of 1984, whereby the authority has awarded FA/1347/1988 2/5 JUDGMENT Rs.21,000/- to the original claimant with 9% interest till the date of realization. 2. The facts in brief, as emerging from record, are as under: 3. That one Kala Govind, son of respondent no.1 and father of respondent no.2 had died during the course of his employment while he was working with the appellant. It is alleged that the deceased was doing centering work and on 10th December 1983, centering fell down and he sustained injuries and as a result of it, he died on 11th December 1983. Therefore, the respondents herein filed Workmen Case No.79 of 1984 before the Commissioner for Workmen Compensation, wherein it is stated that the deceased was earning Rs.960/- per month, therefore, an amount of Rs.30,000/- was claimed as compensation. The respondents also claimed penalty at the rate of 50% of the claim. The appellant herein resisted the claim and stated that the deceased was not working with him since last 15 years and he was an independent contractor, who used to keep slab work and he was required to bring all the centering material. An agreement was also entered between the appellant and the deceased and, therefore, there was no relationship of employer and employee between the appellant and the deceased. Therefore, the appellant was not required to pay any amount. It was also stated that after the death of the deceased, respondent no.1 had taken back the goods for centering and also issued the receipt. It was also contended that the applicant and the deceased were residing separately and the claimant was not dependent upon the deceased. The appellant also denied that there was salary of Rs.960/- per month as alleged but he contended that the contract for the work was given. 4. After considering the evidence on record, Commissioner of FA/1347/1988 3/5 JUDGMENT Workmen Compensation partly allowed compensation Case and directed to pay Rs.21,000/- to the respondents with 9% interest. Being aggrieved by it, the appellant has filed this appeal. 5. Heard learned advocates appearing for the parties. 6. It is submitted by learned advocate for the appellant that in view of contract dated 24th November 1983, it is clear that the deceased was a contractor and, therefore, the respondents herein are not entitled to claim compensation under Section 12 of the Workmen's Compensation Act, which reads as under: "Section 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 contract with any other persons (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 employee in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed 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 the compensation shall be calculated with reference to the wages of 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 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. FA/1347/1988 4/5 JUDGMENT (3) and (4) ..........." 6.1 He further submitted that since there was no employee employer relationship between the appellant and the deceased, the claimants are not entitled to receive any compensation. He, therefore, prayed that this appeal may be allowed by setting aside impugned order of Workmen Compensation Commissioner. 7. On the other hand, learned advocate for the claimants supported the judgment of Workmen Compensation Commissioner. He also submitted that no contention with regard to employee-employer relationship was raised by the appellant before the Workmen Compensation Commissioner and, therefore, it cannot be allowed to be raised for the first time. Therefore, it is prayed that this appeal may be dismissed. 8. I have considered the submissions made on behalf of the appellant and also gone through the judgment of the Workmen Compensation Commissioner and other relevant documents. In my view, since no contention was raised before the lower Court that the deceased was a contractor and he was not an employee, it cannot be allowed to be raised for the first time in this appeal. Not only that, no evidence was led in that regard before the lower Court. Therefore, in my view, after considering the evidence on record, Workmen Compensation Commissioner came to the just conclusion that the claimants are entitled to receive Rs.21,000/- as compensation. I am in complete agreement with the reasonings given and finding arrived at by Workmen Compensation Commissioner while passing impugned order. No other evidence is shown to me to take a contrary view. However, the Workmen Compensation Commissioner committed an error while FA/1347/1988 5/5 JUDGMENT granting interest at 9% to the claimants and as per the provisions of the Act prevalent at that time 6% interest was required to be awarded. Therefore, this appeal is partly allowed and the impugned order is modified only to the extent that, instead of 9% interest, the claimants will be entitled to receive 6% interest on the awarded amount. Rest of the award of Workmen Compensation Commissioner will remain intact. 7. For the reasons stated herein above, this appeal is allowed to the aforesaid extent with no order as to costs. (K.S.Jhaveri, J.) /malek