John Beaumont, C.J.
1. This is an appeal arising under the Workmen's Compensation Act, 1923, preferred by the workman against the opposite party, whom I will refer to as the 'selling agents.'
2. The facts found are that the selling agents are the sole selling agents of the Sassoon Spinning and Weaving Co., Ltd., whom I will refer to as the 'mill company,' under an agreement dated January 7, 1939. By Clause 3 of that agreement the selling agents have to procure orders for the sale of the mill company's cloth, and under Clause 6 it is provided that the mill company shall store their manufactured cloth in their godowns and give delivery orders of such portions as the selling agents shall require to the selling agents. Then Clause 7 provides that the selling agents shall sell the goods so delivered to them at a shop in Bombay, and Clause 8 provides that the selling agents shall take delivery of the; goods from the mill company's godowns at their own expense. So that what it comes to under that agreement, so far as material, is that the mill company manufacture cloth and store it in their godowns, and the selling agents have to take delivery at the mill company's godowns and to sell the goods at a shop in Bombay, which necessarily involves that they must transport the goods from the mill company's godowns to the selling agents' shop.
3. On August 30, 1939, the selling agents desired to transport some bales from the mill company's godowns to the selling agents' shop, and they employed a firm, of which one Narayan was a partner, to carry out the transport, and that firm hired a lorry from a lorry owner, and the workman in question was a cleaner on that lorry. Now, it is found as a fact by the Commissioner that the workman was engaged by Narayan to help to remove bales from the godowns and to stack them in the lorry, and it was in the course of that work that he was accidentally killed. It is, I think, clear that Narayan on behalf of his firm was the employer of the workman within Section 2(e) of the Act, he having temporarily borrowed the services of the workman, and the Commissioner has found as a fact that the accident arose out of and in the course of the employment. But the selling agents would not be liable to pay compensation, unless the case can be brought within Section 12 of the Act, which deals with work done on behalf of an employer by a contractor. Sub-section (7) of that section provides so far as material:
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 compensation.
Sub-section (4) provides:
This section shall not apply in any case where the accident occurred; elsewhere than 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.
The Commissioner held that transport of goods from the mill company's godowns to the shop of the selling agents was not ordinarily part of the trade or business of the opposite party, and in so holding, I think, he was influenced by a decision of this Court in Rabia v. The Agent, G.I.P. Railway (1928) I.L.R. 53 Bom. 203, s.c. 31 Bom. L.R. 311, to which I will refer presently.
4. The question, which arises under Section 12(1), is normally a pure question of fact. The essential question is whether the contractor was engaged in work which was ordinarily part of the trade or business of the principal. It will be observed that the question relates to the business of the particular principal, and not generally to businesses of the class of that carried on by the principal, so that the question can only be answered by reference to evidence as to the nature of the principal's business. In the present case the nature of the selling agents' business is defined by the selling agreement, and the answer to the question is simple, because the work, which the selling agents do, on the true construction of that agreement, must include removing goods from the mill company's godowns to the shop of the selling agents. Such work not only ordinarily forms part of the business of the selling agents, but is an essential part of it, and the selling agents cannot escape liability by employing a contractor to do such work. I cannot, therefore, agree with the finding of the learned Commissioner.
5. This case has been referred to a full bench, because it would seem that two cases decided by this Court are calculated to cause some confusion to the Commissioner, and it is desirable to get the questions, which arise under Section 12, straight.
6. The first case is the one to which the Commissioner refers, Rabia v. The Agent, G.I.P. Railway. What the Court held there was that the erection of pillars to carry an electric cable in connection with the electrification of a part of the system of the G.I.P. Railway Company formed no part of the ordinary work of such company. As the decision turned entirely on facts, it is not necessary to express any opinion as to its correctness. But the Court discussed at some length English cases on the Workmen's Compensation Act of 1897, Section 4 of which dealt with sub-contracting and contained an exception in the case of any contract with any person for the execution by or under such contractor of any work which is merely ancillary or incidental to, and is no part of, or process in, the trade or business carried on by the undertakers. Sir Amberson Marten, who delivered the leading judgment, noticed that the words of Section 4 of the English Act were different from the words of Section 12 of the Indian Act, but he expressed the view that, notwithstanding that, some assistance might be derived from the English authorities. I venture to think that to construe an Indian Act in the light of cases decided under an English Act differently worded is much more likely to cause confusion than to render assistance, and I think that the English cases have caused some confusion in this case to the Commissioner, because he cites a passage from the judgment of Murphy J., in Rabia's case, in which he expressed the opinion that the words in the English Act 'ancillary or incidental to the trade or business' had much the same effect as the word 'ordinarily' in the Indian Act. I am quite unable to agree with that view. It seems to me that work, which is ancillary or incidental to a business, may of may not ordinarily form part of that business. The questions under the two Acts are quite distinct, and I can see no justification for incorporating into the administration of the Indian Act difficulties which arose on the construction of the English Act.
7. The other case is a very recent decision of this Court in Wadilal Lalluchand v. Bai Radhabai (1941) F.A. No. 151 of 1940, decided by Broomfield and Divatia JJ., on April 4, 1941 (Unrep.). In that case the opponents were a piecegoods shop, and they employed a man named Kondiba to transport goods for sale in their shop from a warehouse in the docks, and an accident occurred to the workman in the course of such transport. The Commissioner held that Kondiba was employed by the opponents, and that the workman, who was employed by Kondiba, was really an employee of the opponents, so that no questioni under Section 12 arose in his view of the case. But this Court held that there was no evidence to justify the finding of the Commissioner, and that in fact Kondiba was a contractor, and a question, therefore, arose under Section 12 whether he was employed in connection with work ordinarily forming part of the business of the opponents. Now, seeing that the Commissioner had not directed his mind to that question, in my view, the proper order for the Court to have made was to send the case back to the Commissioner to decide the questions of fact arising under Section 12(1) and (4). Instead of adopting that course the Court proceeded to decide the questions of fact, as though they were questions of law. The Court referred to Rabia v. The Agent, G.I.P. Railway, and also to Karnani Industrial Batik, Limited v. Ranjan (1932) I.L.R. 60 Cal. 24., and stated that in the latter case a contract was given by a bank for the purpose of constructing a building in which the bank was to be housed, and for that purpose they had engaged a contractor, and it was held that the bank was not liable under Section 12 of the Act, in spite of the fact that there was a clause in the memorandum of association of the bank which entitled it to build houses among other things, and that the decision was that it could not be said that the building of houses was the business of the bank. As a matter of fact, the case decided nothing of the sort, as I will show in a moment. Then this Court went on to say:
We think, therefore, that on the principle of the two decisions in Rabia v. The Agent, C.I.P. Railway and Karnani Industrial Bank, Ltd. v. Ranjan, the work of unloading the bales and bringing them to the market cannot be regarded as part of the business of the appellants.
I must confess that I feel the greatest difficulty in understanding what that proposition really means. The learned Judges cannot, I think, have been directing their minds to the question of fact which really arose under Section 12(1), since to say that, because erecting pillars for an electric cable is no part of the business of a particular railway company, and because building a house is no part of the business of a particular bank, therefore transporting piecegoods to a shop in which they are to be sold is no part df the business of the particular shop, involves a glaring nan sequilur. The Court evidently considered that these two cases lay down a principle, but what that principle is I do not know. Rabia's case decided a mere question of fact. The case of Karnani Industrial Bank, Ltd. v. Ranjan really laid down the correct principle, but this Court seems to have misunderstood the case. It did not decide that the building of a house was no part of the business of the particular bank. Sir George Rankin in giving the leading judgment observed in effect that from such knowledge as he possessed of banking business, he thought it unlikely that the business of the bank would include the business of building a house; but he said expressly that he could not lay down as a proposition of law that the building of houses formed no part of the ordinary business of this particular bank, and that the matter must go back to the Commissioner for a finding on that question of fact. That was the order which the Court made.
8. In my opinion, the judgment in Wadilal Lalluchand's case cannot be supported. In cases, which arise under Section 12, the Commissioner must find the necessary facts. In that case it was relevant to find whether it was the ordinary practice of the opponents to take delivery of goods at the docks and to arrange for their transport to the shop, or to take delivery at the shop. Without findings on these points, it could not be. determined whether the transport was part of the ordinary business of the shop.
9. Mr. Bhagwati has referred us to the modern English. Workmen's Compensation Act and to authorities under it. The Act of 1906, which is now replaced by the Act of 1925, repealed the Act of 1897, and it is relevant to note that Section 12 of the Indian Act is an exact replica of Section 6 of the English Act of 1906, except that it has substituted the very material words 'which is ordinarily part of the trade or business of the principal' for the words; 'undertaken by the principal.' So that whereas the English Act only applies to work of a contractor undertaken by the principal, the Indian, Act applies to work done by a contractor which is ordinarily part of the trade or business of the principal. The variation was obviously deliberate, and the two phrases do not mean the same thing. It may be that work, which is ordinarily part of the trade or business of the principal, nevertheless was not work undertaken in the particular case, or usually undertaken by the principal. In my opinion to consider cases decided on the English Act merely leads to confusion. It may be noticed that sub-section (4) of Section 12 of the Indian Act is a replica of sub-section (4) of Section 6 of the English Act, and refers to work undertaken, or usually undertaken, by the principal. However, as I have said, we are not concerned in this case with any question arising under sub-section (4), because it is perfectly plain on the agreement between the selling agents and the mill company that the selling agents did undertake to do the transport work from the mill company's godowns and it was there that the accident occurred.
10. As the question in this particular case turns entirely on the construction of the agreement between the selling agents and the mill company, this Court can deal with the question itself, and need not refer it back to the Commissioner to find the facts. On the construction of the agreement I have no doubt that we must hold as a fact that the work, which was being done by the contractor at the time when the accident occurred, was work ordinarily done by the selling agents.
11. That being so, the appeal must be allowed with costs, and the case must go back to the Commissioner to settle the compensation.