1. This Appeal arises out of the decision given in Workmen Compensation Case No. 6 of 1978 by Civil Judge, Senior Division, Amravati on 8-8-1980. The respondent No. 1 Sahadeo, had preferred a claim for Rs. 25,880/- against the respondent No. 2-- Bhaurao and Appellant--Shantabai, inter alia alleging that Sahadeo was engaged by the labour contractor Bhaurao for the construction of Shantabai's house and that on 23-3-1977 while removing the centering of the construction slab, he sustained an injury to his right thigh which was fractured and which amounts to a permanent disability.
2. Bhaurao--Respondent No. 2 as non-applicant No. 1, was the main contesting party before the trial Court. He admitted that he was the Labour Contractor and that he had engaged Sahadeo as a labourer on daily wages. He, however, submits that removal of centering was not bis job and he was specifically told not to remove the centering. Yet in clear disobedience of the said order, he tried to remove the centering and sustained injury. Bhaurao contractor has further contended that he had paid a sum of Rs. 1450/- as compensation; that he holds a receipt of Rs. 1350/- vide Ex. 32, but also paid Rs. 100/- in addition. He also denies total permanent disablement of the worker Sahadeo.
3. The appellant as non-applicant No. 2, in her written statement denied any liability whatsoever contending that she had nothing to do with Sahadeo; she was not employed by her and that she has been unnecessarily joined in the proceedings. She further submitted that no notice of claim was issued by the worker Sahadeo to her and that she is entitled to be discharged.
4. On the basis of these averments, the trial Court framed 3 issues. The first issue was;.
Does applicant prove that he was employed by the non-applicant No. 1 for his trade or business and he was paid the daily wages of Rs. 12/-
and the finding arrived at by the trial Court after recording of evidence was;.
Yes, at Rs. 12/- per day and also by NA No. 2, Shantabai.
The other issues with which we are not concerned in the present appeal are relating to the permanent disability sustained by the worker and the quantum of compensation to which he is entitled.
5. After giving reasons for his conclusions, the trial Court ordered that' both the contractor Bhaurao and the house owner Shantabai are jointly and severally liable to deposit Rs. 25,330/- towards compensation payable to the worker Sthadeo.
6. The contractor Bhaurao has not preferred any appeal. However, the house owner Shantabai has preferred this Appeal. The main grounds are that the trial Court has erroneously held the house owner as responsible for the compensation payable and that the trial Court's conclusion that the worker Sahadeo was engaged during the course of employment with appellant Shantabai is also erroneous.
7. Shri L. Mohta assisted by Shri T.R. Gilda appeared for the appellant and Sahadeo--Respondent No. 1, (the worker claiming compensation) is represented by Shri A.M. Gorde. The second respondent Bhaurao--Contractor is duly served. With the assistance of counsel of both the parties, I have gone through the pleadings, documents and oral evidence on record as well as the impugned judgment.
8. Since the appellant house owner has raised grounds that the worker Sahadeo was not in her employment and she has no concern with the claim for compensation preferred by him and inasmuch as the trial Court has conclusively held that the worker Sahadeo was in her employment and that the contractor Bhaurao who worked on the construction site as Labour Contractor was merely an intermediately on behalf of the appellant Shantabai, the main question is restricted to whether the appellant Shantabai is entitled to be discharged or whether as held by the trial Court, she is jointly and severally liable with the contractor Bhaurao for the claim.
9. At the outset Shri Gorde for the respondent had urged that the scope of appeal Under Section 30 of the Workmen's Compensation Act is restricted. According to him, an appeal lies to the High Court under the Workmen's Compensation Act only from an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum. He pointed, out that no appeal shall lie as per the Proviso to Section 30 against any order unless substantial question of law is involved in the appeal. He, therefore, submitted that the finding of fact arrived at by the Commissioper for Workmen's Compensation would not ordinarily be upset unless there is a grave error of law in the impugned order.
10. Bearing this submission in mind, it is to be seen whether the impugned order is so grossly erroneous that it has resulted in miscarriage of justice. Shri Mohta for the appellant pointed out that after the alleged injury sustained by the worker Sahadeo, he had received a compensation of Rs. 1350/- from the contractor Bhaurao on 14-4-1977. The receipt Ex. 32 on record shows that he had accepted the said amount from the labour Contractor Bhaurao in full satisfaction. At any rate, he submitted that the said notice makes it clear that the worker Sahadeo was under the direct employment and supervision of the contractor Bhaurao in the matter of construction of house belonging to the house owner Shantabai. He next pointed out the the initial notice issued on behalf of the worker on 5-10-1977. The said notice is at Ex. 30 which is addressed to the labour contractor Bhaurao alone. The sold notice does not refer to Shantabai at all. Moreover, in the said notice also the worker has made a specific allegation that in the contract work accepted by Bhaurao, he was employed by Bhaurao as a worker and it was during the course of the said employment with Bhaurao that he had sustained the said injury. Shri Mohta also pointed out the application for compensation preferred by the worker. In the very opening paragraph of the said application, the worker Sahadeo has pleaded that he was a workman employed by opponent No. 1 (Bhaurao contractor) and received the personal injury by accident arising out of and in the course of his employment. At the end of para 1 the worker has again pleaded that the injury took place at noon time in the house of Shantabai where the contractor Bhaurao was working as a labour contractor and had employed the applicant on daily wages of Rs. 12/-. It is the case of the worker in para 4 of his application that he served the notice of accident upon Bhaurao--Labour Contractor alone. It is for the first time in para 6 that he pleads that the worker tried to prevail upon both the opponents, that is to say, Bhaurao contractor and Shantabai--The house owner, to settle his claim. The applicant nowhere pleads that he was in the employment of Shantabai--The house owner or that the injury sustained by him had occurred during the course of his employment with Shantabai. Finally, the appellant's counsel also drew my attention to the evidence on record wherein the worker Sabadeo has admitted in his examination-in-chief that on the relevant date, he was working on the construction work of the house of Shantabai which has been constructed by non-applicant Bhaurao by engaging his own labour. In his cross-examination also the worker Sahadeo has admitted in categorical terms that it is true that it was Bhaurao who had engaged him on the work and was paying bis wages and that the contract of employment was with Bhaurao.
11. On these submission Shri L. Mohta for the appellant submitted that the trial Court has committed a grave error in saddling the responsibility of the compensation upon appellant Shantabai.
12. Shri Gorde for the respondent No. 1 Sahadeo supported the impugned judgment. He relied upon the oral testimony of Bhikamchand Rathi (Ex. 44) whe was examined on behalf of the house owner Shantabai. He urged that the evidence of Bhikamchand shows that he was looking after and supervising the work of construction on behalf of Shantabai; that he used to make the payments of labourers on site. On the basis of his deposition, Shri Gorde submitted that Bhaurao--The labour contractor, was merely a commission agent or a manager for and on behalf of the house owner Shantabai and that the employment of the worker was directly with the house owner Shantabai.
13. The perusal of the initial notice of claim issued by the worker Sahadeo (Ex. 30) shows that the same is addressed to the labour contractor Bhaurao alone and that the averment in the notice is that Sahadeo was employed by him on his contract work when he was injured. By the said notice, he wants compensation from Bhaurao contractor alone. The application preferred by the worker Sahadeo before the trial Court also avers that the applicant Sahadeo, was employed by Bhaurao contractor four months prior to the date of accident and that the injury was sustained by him out of and in the: course of his employment. In paragraph 1, the worker has specifically averred that Bhaurao contractor was working as a labour contractor With Shantabai and had employed the applicant on daily wages. The entire application claim is directed against Bhaurao contractor alone. There is not even a single pleading in the said application to show that Shantabai was in any way directly or 'indirectly connected with the employment of the worker or that she was directly or indirectly liable for compensation to the worker.
14. The contractor Bhaurao by his statement Ex, 21 has admitted the fact that she was working as a labour contractor for Shantabai and that it was he who had employed the worker Sahadeo at the construction: site. The rest of the pleadings on behalf of the contractor Bhaurao are to the effect that the worker had disobeyed his instructions and that he sustained injury because of his own negligence and the contractor is not liable. The enti?e written statement on behalf of the contractor also does not directly or indirectly include Shantabai the house owner in the entire transaction. Lastly, it is seen that the bouse owner Shantabai as non-applicant No. 2 filed her written' statement at Ex. 19. The said statement is a total denial of the claim and it,is specifically averred by her that she is in no way responsible for settling the applicant's claim and that she is also not responsible as she h#d not employed the applicant worker. In paragraph 7 of her written statement, Shantabai has stated that she has been unnecessarily joined as a party and that the same is liable to be dismissed, against her. The perusal of the oral testimony of Tie Worker Sahadeo further makes it clear that it is his case that he was employed by Bhaurao who is the building contractor. He also states that he was working at the construction work of the house of Shantabai which was being constructed by Bbaurao by engaging his own labour. He categorically admits that it was Bhaurao contractor who had engaged him on that work and it was Bhaurao alone who was paying him wages. In paragraph 5 of his cross-examination, there is further admission on behalf of the worker Satadeo wherein he states that it was true to say that Bhaurao had engaged him on the work and was paying his wages and that the contract of employment was with Bhaurao. As already observed above, in the initial notice (Ex. 30) as well as in the plaint and lastly even in his oral testimony, the worker Sahadeo does not make out a case that he was ever employed by Shantabai the house owner or that he was ever paid any wages by Shantabai. It has been his consistent case that Bhaurao was the main contractor for the construction of the house of Shantabai and it w as Bhaurao who was paying the wages.
15. We are not concerned in this appeal with the nature of injury sustained by the appellant, nor by the quantum of compensation to be awarded to the worker. The case of the appellant is that she was unnecessarily joined and that there was no privity of contract as employer and employee between herself and the worker Sahadeo. On this limited question, the pleadings and the evidence of the worker Sahadeo shows that it was Bhaurao, the labour contractor who had engaged him. This fact is also admitted by Bhaurao in his pleadings as well as in the evidenee. That is also the case of Shantabai the present appellant. Moreover, it is seen from the original application that appellant Shantabai who was non-applicant No. 2 in the original case has been described in the title as Shantabai w/o Balkisanji Rathi, occupation household. Thus, it is apparent that Sahadeo, the worker, was all the time aware that Shantabai is a house holder and that it was not her business or trade to deal with the construction of houses. She was merely dealing with the construction of her own house for which she had engaged the services of Bhaurao as the contractor. Even the witness Subhash, examined on behalf of the worker Sahadeo states that he was working along with Sahadeo for the construction of the house of Shantabai whose contract was taken by Bhaurao. In paragraph 3 during cross-examination, this witness has admitted that it was Bhaurao who had engaged him and the other labourers and Bhaurao himself used to make, them payment. The contractor Bhaurao has also examined himself as witness No. 2 for non-applicant and in the opening paragraph, he admits that he had taken the labour contract to-construct the house of Shantabai Rathi and that applicant Sahadeo was engaged by him on that work on daily wages. Bhikamchand is the last witness No. 4 on behalf of the non-applicant. He states that Shantabai the house owner is the wife of his younger brother and that he was looking after the construction of house. Shri Shidore Engineer, was also supervising the work. He then states that the entire work including labourers was given on contract and the labour contract was given to Bhaurao Jagtale.
16. From the pleadings, the documents as well as the oral evidence adduced by both the parties, the only transaction which emerges on record is that the worker Sahadeo was in the employment of Bhaurao contractor and that Shantabai had no concern whatsoever with the said worker. The reasoning of the trial Court that Bhikamchand f was looking after the construction work of Shantabai goes to show that Shantabai herself was constructing the said house and that therefore, Sahadeo was in her direct employment, is totally erroneous and cannot be supported by any document or evidence on record. I am aware that only substantial questions of law are to be taken into consideration in this First Appeal. Where, however, there is total non-application of mind by the trial Court, to the pleadings and evidence on record resultirg in erroneous findings, in that case also, a substantial question of law arises and the same can be set right in First Appeal Under Section 30 of the Workmen's Compensation Act The finding of the trial Court in the instant case is totally contrary to the pleadings and evidence on record and cannot be sustained.
17. Shri Gordey for the respondent worker relied on Section 12(1) of the Workmen's Compensation Act in the alternative. He submitted that even if it is assumed that Shantabai was the principal and Bhaurao was given the contract on her behalf, yet she is vicariously liable for compensation to the worker Sahadeo Under Section 12(1) of the Workmen's Compensation Act. I am unable to agree with the submission for the simple reason that Section 12(1) contemplates a case where a contract or sub-contract is given by a person in the usual course of his trade or business which he would have carried out himself. The said Section would not be applicable to a private citizen like Shantabai who is a house holder and who constructs a private house once in a life time. The Division Bench of our High Court, way back in 1929 has taken the same view. It was in the case of Rabia Md. v. G.I.P. Railway A.I.R. 1929 Bom 179. The same view has been followed by Single Judge of this Court in Garrison Engineer (Project) v. Guttamme Hanmantdas 1979 M.L.J. 653. Apart from this, the Division Bench of the Kerala High Court in the matter of Vijayarakhnavan v. Velu 1973 Lab. I.C. 1520 has taken the same view. It is held therein that:
The person must have engaged a sub-contractor for work which he himself normally does not which is ordinarily part of his business. The work given on contract may be a work on his own account or on account of another. But, it must be such a work as a person employing a sub-contractor usually undertakes in the ordinary course of his trade or business. The principle behind this is that if a person substitutes another for himself to do that which is his own business he ought not to escape the liability which would have been imposed upon him if he had done it himself towards the workman empldyed in the business.
18. Apart from answering the submission on behalf of the worker Sahadeo, this decision also answers the initial submission by him about the limited scope of appeal in the High Court. It is held in paragraphs 4 and 10 of the said judgment that:
When the High Court comes to the conclusion that the basis of the decision and the law applied by the Commissioner are erroneous the High Court can independently go into this question and pass an order which the circumstances of the case warrant. In exercising that power the person who has not been made liable or who has been exonerated from liability can be made liable if he is a party to the appeal and he has been given an opportunity to show cause against it. This prove to alter the decree by substituting the person liable is part of the appellate to power.
It is thus abundantly clear that the Court of Commissioner for Workmen's Compensation has erroneously saddled the responsibility on the house owner even though the documents and evidence on record categorically point that it was Bhaurao-contractor, who alone was responsible for the construction and who had employed the injured workman.
19. In the result, therefore, the order of the trial Court in so far as the appellant Shantabai is concerned will have to be struck down, while that against Bhaurao contractor will have to be maintained. The appeal is allowed. The impugned order against the appellant is quashed and set aside. The decree passed against the appellant is set aside. In the circumstances of the case, there shall be no order as to costs. The decree against Bhaurao is maintained.