1. Respondent 1 filed an application against the Appellant, who was respondent 1 in the lower Court and who is a permanent resident of Bangalore, in the Court of the Commissioner for Workmen's Compensation, Kolar District, for compensation on account of the death of her son and later added Respondent 3 as a party thereto. She alleged that her son had been employed by the Appellant in his lorry service which he was plying in the Kolar Gold Fields, and that on 26-2-49 while the lorry was so plying the deceased met with his death owing to an accident which took place during the course of his employment under the Appellant as his workman. The Appellant pleaded that he never employed the deceased and did note even know him and that there was no privity of contract between himself and the deceased. He no doubt owned the lorry but on the concerned date he had leased it out to Respondent 2 who was a motor driver for a period of one month from 5-2-1949 to 5-3-1949. He was therefore not in possession and control of the lorry or of the persons employed by respondent 2 during the period of the lease. Respondent 2, who is from Andersonpet, K. G. F., pleaded that he was not the owner but only a driver of the vehicle, that the Appellant had informed him that the insurance on the vehicle and road taxes had been paid by him and that he (Respondent 2) was not responsible for any claim under the Workmen's Compensation Act which should be paid by the Insurance Company or by the owner of the vehicle.
2. The Commissioner held that the deceased was an employee under the Appellant and had died in the course of his employment and that the casefell within the Workmen's Compensation Act. He based his decision on the ground that the Appellant had obtained a Public Carrier permitand his business was to transport goods and commodities for hire; and as respondent 2 had taken the lorry from the Appellant for the same purpose, more or less, on a contract basis, the Appellant became the principal and respondent 2 a contractor within the meaning of Section 12, Workmen's Compensation Act, and that the Appellant was therefore liable to pay compensation. He, therefore, awarded compensation of Rs. 810 against the Appellant only.
3. The terms and conditions under which the lorry came to be in possession of respondent 2 is evidenced by an agreement dated 5-2-49 executed by him in favour of the Appellant so that that portion of the case is clear and-cannot be seriously disputed. By that agreement respondent 2, took on lease, the Appellant's lorry for a period of one month. He agreed to drive it himself and not to sub let it or deliver it to anybody else's possession. He undertook to hold himself responsible for its proper care, to keep it cleaned and oiled and to be liable for any damages to the lorry or its tyres and tubes. The Appellant was to supply a cleaner for the lorry whose salary was to be paid by the Appellant alone, but respondent 2 had to pay him some daily batta and pay for his food expenses. The lorry was taken on lease for the express purpose of respondent 2's business in Kolar District of transporting articles.
4. The deceased was employed by respondent 2 as a cooly to load and unload the lorry which, respondent 2 was driving. P. W. 2 has deposed that on the date of the accident he heard that somebody was caught under the lorry and he went and saw the deceased's body under the lorry. He, however, says that he does not know how the accident occurred. Respondent 2 has deposed that the deceased was working as a cooly for loading and unloading things from the lorry from about 15 or 20 days, that he was being paid weekly wages at the rate of 14 annas a day and that on the date of the accident the deceased along with some other coolies was sitting in the loaded body of the lorry which he was driving; apparently he must have fallen out of the lorry and met with his death.
5. It is contended by Mr. Matthews, learned Counsel for the Appellant, that the deceased was not employed by his client within the meaning of Section 12 of the Act. Under Section 12, where any person, referred to as the Principal, in the course of or for purposes of his trade or business, contracts with any other person, referred to as contractor, for the execution by or under the contractor of the whole or part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay compensation to a workman employed in the execution of the work as if that workman had been immediately employed by him. Babia Mahomed Tahir v. G.I.P. Rly., A. I. R. (16) 1929 Bom. 179, was a ease in which the G.I.P. Railway in connection with the electrification of their line were building a power station and constructing a transmission line to carry power to various sub-stations on the railway. They had entrusted the work of construction the transmission line on a contract to an independent firm. That firm had employed the deceased as a fitter. His duties were to assist in the erection of the steel towers which were to carry an overhead cable. These towers were not erected on the track but on the adjacent land at a short distance from the railway line. The deceased was knocked down by a train and killed while carrying material from a nearby store to the site of the work. On a reference of the question whether G.I.P. Railway were liable to the representatives of the deceased, it was held that the construction of the original works which would be necessary to convey power to the locomotives was not part of the ordinary trade or business of the G. I. P. Railway within the meaning of the word 'ordinarily' in Section 12, Workmen's Compensation Act. In Ghose S.M. v. National Sheet & Metal Works Ltd., : AIR1950Cal548 , a workman sustained injury as a result of an accidental fall from a scaffolding whilst he was painting a factory shed which formed part of the premises occupied by the National Sheet and Metal Works Ltd. He had been employed by the appellant, a contractor. The Commissioner for Workmen's Compensation held that the case came within Section 12(2), Workmen's Compensation Act and that the appellant was liable to indemnify the Metal Works as the accident had occurred to the workman when he was employed in the course of or for purposes of the business of the principal. Harries C. J., relying on A.I.R. (16) 1929 Bom. 179, pointed out that in order to come within Section 12(1) the workman must prove two things firstly that the principal, in the course of and for the purpose of his trade or business, entered into a contract with the contractor and secondly that the subject matter of, the contract with the contractor was work which ordinarily formed the whole or part of the trade or business of the principal. He held that :
'the question of indemnifying the principal under Sub-section (2) of Section 12 arises only when the case falls within Sub-section (1). Where the work done by the workman is not the work which ordinarily forms the whole or part of the work of the principal, the case is not governed by Section 12(1) and right to claim indemnity does not arise.'
He went on to observe :
'Where compensation is claimed by a workman against the principal instead of against the contractor, his immediate employer, it is not for the contractor to prove that the work which he contracted to do was not ordinarily the kind of work performed by the principal. The onus rests in the first place upon the workman to prove that the work done by the contractor under the contract was work which ordinarily formed the whole or part of the principal's business and on establishing that fact, a right of indemnity would arise.'
In that case the workman had offered no evidence at all as to the nature of the work or business of the Metal works and had not suggested that painting work ordinarily formed the whole or part of their business.
6. In the present case we have no evidence to hold that the work which was being carried on by respondent 2 was the whole or any part of any work which is ordinarily part of the trade or business of respondent 1 (sic.). It appears to be more proper to hold in this case that the work or business of the principal, the Appellant, was merely to be out his lorry for hire while that of respondent 2 was quite different, viz., to use the lorry to convey materials in connection with some trade or business of his own.
7. The learned Commissioner has relied upon no decided cases to come to his conclusion but has relied upon some stray passage at pages 46-47 in the Book 'The Workmen's Compensation Act of 1923 by Ramanatha Aiyar and Krishnamurthy Aiyar'. It is not at all clear from the reference in that book under what circumstances and under what terms and conditions the horse and the driver referred to in that passage had been let by the employer into the service of another and the control which the employer continued to have over the driver. On the facts and circumstances of the present case it has not been shown that the Appellant was the principal and respondent 2 the contractor within the meaning of Section 12(1), Workmen's Compensation Act. Respondent l cannot therefore have any recourse against the appellant for compensation for injuries sustained by the deceased.
8. It was contended by Mr. Kanakasabhapathy learned counsel for respondent 1, that his client must at least be able to recover compensation from respondent 2 who directly employed the deceased. That matter has not been gone into by the lower Court and we have not been shown any provision of law under which we can convert the award which has been granted against the Appellant into one against respondent a Respondent 2 is not also represented before us. We, therefore, propose to set aside the order passed by the Commissioner and dismiss the application filed by respondent 1 as against the appellant and to remand the case for further consideration of the Commissioner and to pass such orders as he may choose against respondent 2 in the light of the observations we have made above. We order accordingly. The parties will bear their own costs in this Court.