H.R. Krishnan, J.
1. This is an appeal under Section 30 of the Workmen's Compensation Act (8 of 1923) by the employer who has been ordered by the Commissioner for Workmen's Compensation, Ujjain, to compensate the respondent for the loss of one eye being hit by a piece of stone, in the course of his employment under the appellant for the breaking of stone slabs. The points raised are firstly, that he was not really working at the time of the mishap, but happened to pass that way; secondly that there was no notice as required by Section 10 or any justification for dispensing with it under Proviso (b); thirdly, that Section 12 of the said Act has been invoked incorrectly, the respondent being himself uncertain as to who his immediate employer was and had given a long list.
2. It would be convenient to consider these points ad seriatim.
3. On behalf of the appellant, Shri Chaphekar has taken me through the entire evidence to show that the respondent was not working on that date in any part of the work in charge of the appellant. He has laid emphasis upon the statement of some of the witnesses on behalf of the appellant. Further, he has pointed out the absence of the respondent's name in the muster roll produced in respect of the section of the work, in which the respondent himself claims to have been employed, and has urged that it was far more likely that the respondent was passing that way, and happening to stop to have a chat with one of the employees, was hit ore the eye by flying piece of stone.
4. Apart from the merits of this contention, the appellant is up against a serious difficulty in that the scope of the so-called appeal under Section 30 of the Act is very restricted, in fact, so restricted that the word 'appeal' itself seems to be less appropriate than the word 'revision'. The proviso No. 1 to Section 30(1) is that-
'No appeal shall lie against any order unless a substantial question of law is involved in the appeal and .....'
Certainly, the question whether at the time of the mishap the respondent was breaking stones in the construction work in charge of the appellant or whether he was just passing by, is a question of pure fact. The wording of the section is clear enough and this has been reaffirmed by the Courts. For example, in Mangalchand v. Mumtaz Begum, AIR 1952 Nag 20 it was held that-
'It is clear that the intention, of the Legislature was that on the questions of fact the finding of the Commissioner should not be challenged, the proper interpretation to be put upon the proviso is to limit the power of the Court to interfere, to such findings of fact as may be necessary for the determination of the question of law involved. Where the question of fact is wholly independent of any question of law, the High Court in appeal is bound by the finding of fact arrived at by the Commissioner.'
Again in K. Ramaswami Mudaliar v. Poongavanam, AIR 1954 Mad 218, it was held;
'Whether a person is a workman or not is a question, of fact on which there can be no appeal. Further, in Hirjibhai Lakhamsibhai v. Damodar, (S) AIR 1957 Madh Pra 49 and Kishorchand Bhai v. Damodar, (S) AIR 1957 Madh Pra 84, the same principle is affirmed :
'A finding of fact cannot be challenged in. appeal in view of the provisions of Section 30 of the Act.'
Thus, it would be unnecessary to go into this ground. I also note that the oral evidence is strong enough on the side of the respondent. The appellant has set a very considerable store by his so-called muster roll; a proper examination of its contents shows that it has not been maintained in due course of business. Be that as it may the finding of fact given by the Commissioner has to be accepted.
5. The Commissioner has considered whether a particular 'demand'' sent by the respondent to the appellant on 9-10-1954, two months and one day after the accident is a notice for the requirements of Section 10. He holds that it is not, but comes to the conclusion that no notice was really necessary because Kishansingh, who was a person responsible, to the employer for the management of the branch of the business in which the injured workman was employed, had knowledge of the accident at the time of its occurrence. On the view taken by the Commissioner, it would be altogether immaterial whether or not the so-called 'demand' was really a notice of a claim as required by Section 10(1) and (2) of the Act. It is a finding of fact that Kishansingh was the employer's responsible agent for the purpose of Section 10(1), proviso (b) and also whether he had knowledge. The Commissioner has found that he was present as the employer's manager in this regard, actually saw the accident happen, and sent the respondent to the hospital.
6. As for the notice itself, it is better, in view of the possibility of similar cases arising in the future to consider whether it is really sufficient for the purpose of Section 10. Though it is called a 'demand'. it is in my opinion, sufficient notice and contains the particulars required under Sub-section (2), It begins by stating that the claimant was employed for such and such purposes in such and such section of the work done under the appellant. It then says that at such and such time he had his right eye injured and blinded by a piece of stone flying off. All the requirements of Sub-section (21 are found here.
He has made a demand in addition, mentioning a figure calculated according to the formula, given in the Act. As for the time factor, the question whether, a notice given after two months in the circumstances of this case can be held to be one given 'as soon as practicable', is one of fact. I Actually, no cast iron rule can be laid down in regard to what is meant by 'as soon as practicable.' But in the present case, the victim of the accident was continuously in the hospital. Thus, even if it is held that Proviso (b) is not applicable, still, there has been a notice substantially in accordance with Section 10.
7. The gravamen of the appellant's case is that the Commissioner could not properly invoke Section 12 in the present case. It has been urged by the respondent that for one thing, the Commissioner was not basing his conclusion solely on Section 12, and has invoked it as an additional support of his decision by way of abundant caution.
8. The scheme of the Act is that the 'employer.' as defined in Section 2(e) should be liable in the manner mentioned in Section 3. Section 12 expressly provides for a case where we have, as it were, several tiers of employers or petty employers. This is common occurrence in big schemes undertaken by a contractor who necessarily has to let different section of his work to petty contractors working under his direction and control. Whenever an employee is working anywhere in the entire system, be will be an employee of the principal; but he may be working under a sub-contractor or a petty contractor.
In this case, the finding is that different sections of the work of breaking stones and fixing them on the pavement, were in charge of a number of petty contractors, all of whom have been named in the letter written by the respondent on 9-10-1954. In addition to this, the appellant has his own manager or supervisor (called mistry) in Kishansingh whose duty it was to see that the petty contractors in the various sections' were themselves working properly, in accordance with the scheme laid down by the contractor of the whole, namely, the present appellant.
In such a case, it would be obviously unjust and very often defeat the purpose of the Act, if the employee is made to run after the sectional boss or the petty contractor. In a big scheme or system there may be several of them and at times, there may be overlapping also, so that the employee may not be able to put his finger on a particular name as the petty contractor under whom he was employed. It might also happen that even when this is possible, file petty contractor may not have the means to pay the compensation. That is why Section 12 enacts that the principal contractor of the whole can be compelled to compensate the workman who works in his scheme or system,
9. Whether the immediate boss of the employee is actually a petty contractor working under the principal contractor or whether he is an independent contractor, would be a question of fact. In this case, it was found as a fact that the employee was under one of the several petty contractors in one of the sections forming part of the system under the principal building contractor. The employee was obviously in doubt as to which of the sectional bosses was immediately above him; in fact, quite a number of them had been at the job with Kishansingh. thrown in as the mistry or supervisor on behalf of the appellant.
The best thing that the employee could do in the circumstances was to single but the principal contractor as the person liable to compensate, mentioning, however, all the petty contractors working in the system. The principal contractor has gone to the extent of suppressing the whole thing, He denies that the respondent was working at all. If he had taken the very moderate course of admitting that the respondent was in his employment as found by the Commissioner it would have been perfectly easy for him to mention which of the petty contractors was immediately responsible for this employee. There is nothing in Section 12 which obliges the injured employee to prove that in addition to the principal contractor from whom he claims compensation, such and such petty contractor was the person immediately above him, Often Such a thing is nearly impossible.
10. Another argument urged by Shri Chafe-kar, counsel for the appellant, is that the purpose of Sub-section (2) would be frustrated unless employee himself mentions who was his immediate superior in the system at the time of the accident. It is difficult to agree. Sub-section (2) enables the principal who is compelled to pay compensation to seek to be indemnified by the contractor or petty contractor under whom the injured Workman had been working, If the principal contractor brings a suit, he would certainly have to name the petty contractor concerned and also to prove that the injured employee was working under him and could have got compensation from him also.
This would be on the basis of evidence on a matter solely within the knowledge of the principal contractor. I do not see how the fact that the employee himself docs state that so and so was the petty contractor, is going to make any difference, because the proceeding under Section 12(2) would be a self-contained one, and a finding of the relationship of a principal and subordinate contractor will have to be given there independently. I therefore hold that Section 12 has not been wrongly applied.
11. Alternatively, the Commissioner seems to have thought that every person employed anywhere in the scheme under the contract of the appellant would be his employee. That would, of course, depend upon the extent and nature of the control the principal contractor, namely, the appellant, was exercising over those who were working under him. It may even happen that the so called petty contractor has so little initiative or discretion of his own that he would himself be straightway an employee of the principal contractor, doing what he is asked to do, though paid in the manner usual with sub-contractors properly so called. All this could have come up for a fuller consideration if I had held that Section 12 was not applicable. But since, I hold that Section 12 is applicable, it is not necessary to go into this question.
12. The result is that the employer's appeal is dismissed with costs and pleaders' fee according to rules.