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Lakhmichand Balchand Vs. Executive Engineer, Division No. 1, Nagarjunasagar Dam and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1962)IILLJ19AP
AppellantLakhmichand Balchand
RespondentExecutive Engineer, Division No. 1, Nagarjunasagar Dam and ors.
Excerpt:
- .....of compensation is made, a notice to the employer is also necessary under section 10a of the workmen's compensation act (viii of 1923) hereinafter called the act, apart from a notice to the principal employer in the case. the question arises in the following circumstances.2. one anjayya, son of malakappa, was killed on 25 august 1968 in an accident in the course of his employment at nagarjunasagar dam. the matter was reported to the additional commissioner, workmen's compensation, andhra pradesh, by the executive engineer, division no. i, nagarjunasagar dam. thereupon the additional commissioner, workmen's compensation, by his order dated 27 october 1958 awarded rs. 1,350 by way of compensation to the dependants of the deceased anjayya. he observed in the course of the order that.....
Judgment:

Sharfuddin Ahmed, J.

1. The question that requires determination in this revision petition is whether before an order of payment of compensation is made, a notice to the employer is also necessary under Section 10A of the Workmen's Compensation Act (VIII of 1923) hereinafter called the Act, apart from a notice to the principal employer in the case. The question arises in the following circumstances.

2. One Anjayya, son of Malakappa, was killed on 25 August 1968 in an accident in the course of his employment at Nagarjunasagar Dam. The matter was reported to the Additional Commissioner, Workmen's Compensation, Andhra Pradesh, by the Executive Engineer, Division No. I, Nagarjunasagar Dam. Thereupon the Additional Commissioner, Workmen's Compensation, by his order dated 27 October 1958 awarded Rs. 1,350 by way of compensation to the dependants of the deceased Anjayya. He observed in the course of the order that the authorities of the Nagarjunasagar Dam, being the principal employer, have admitted the liability to pay compensation and have agreed to deposit the amount with the Bald Court. He held an enquiry in regard to the dependants of the Bald Anjayya and allocated a sum of Rs. 350 to his mother, Rs. 400 to the unmarried sister, Rs. 600 to the widow--in all Rs. 1,350 as indicated above. Thereafter directions were issued to the concerned authorities for the payment of the amounts. Aggrieved by the Bald order, the petitioner herein, representative of the contractors Lakshmichand Balachand, filed a petition before the Additional Commissioner, Workmen's Compensation, under Order 9, Rule 13 and Section 151, Civil Procedure Code, to set aside the order passed by the Additional Commissioner on 27 October 1968 claming that the order was passed ex parte, the deceased was not in his employment and the principal was not justified in recovering the said amount from his bills. The Additional Commissioner by his order dated 27 December 1968 rejected the petition holding that the petitioner had no locus standi in the present case and that it was open for him to seek relief in a civil Court to get an adjudication of his claim. It is this finding, which is canvassed, before me.

3. The learned Counsel for the petitioner relying on a decision in Bisweswar v. K. Nagendra A.I.R. 1935 Cal. 683 has urged that a notice under Section 10A of the Act should have been given to him as he was alleged to be the employer. In any event, as the liability ultimately was on him to pay the compention and he was open to indemnification under Section 12(2), the Commissioner was not justified in rejecting his claim. Reference is made to Section 12(2) of the Workmen's Compensation Act where it is laid down that:

(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor...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.

4. The contention is that under this section it was open to the Commissioner to go into the question whether the deceased was under petitioner's employment and whether he was liable to the Government for indemnification. The section makes it clear that it is only in case of default of agreement that the question as to the right to and the amount of any such indemnity is to be settled by the Commissioner, but when there is an agreement the Commissioner is precluded from entering into the said questions.

5. It has been stated by the learned Government Pleader that the contractor is bound under the Madras Detailed Standard Specifications which lay down that:

In the event of an accident in respect of which compensation may become payable under the Workmen's Compensation Act (VIII of 1923) whether by the contractor or by the Government as principal it shall be lawful for the Executive Engineer to retain out of moneys due and payable to the contractors such sum or sums of money as may, in the opinion of the said Executive Engineer, be sufficient to meet such liability. The opinion of the Executive Engineer shall be final in regard to all matters arising in this clause.

6. In the presence of this agreement, therefore, the Commissioner was not competent to go into the question as to the right to and the amount of indemnity to be paid by the petitioner to the Government. The case cited above, la distinguishable on facts inasmuch as there an application wag filed by the defendants of the deceased person for compensation against the contractor but instead thereof, the Commissioner had issued notice to the railway company, i.e., the principal, who had admitted the claim and paid the compensation amount. It was bald therein that a notice under Section 10A ought to have been given not to the railway company but to the petitioner inasmuch as no claim had been preferred by the dependants of the deceased labourer against the railway company. This does not seem to be the case here. Moreover, it appears that in the said case an application under Section 12(2) was also filed before the Commissioner for the recovery of the amount paid by the company by way of indemnification. It is conceded that no such application has been filled in the instant case. The Commissioner in his impugned order has observed that:.it is open to the principal employer to file an indemnity application.

and in that proceedings the petitioner may contest the position.

7. I therefore see no reason to interfere with the finding of the Additional Commissioner. In the result the revision is dismissed with costs.


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