1. This is a reference by the Commissioner for Workmen's Compensation, Bengal, under Section 27, Workmens Compensation Act (8 of 1923), and arises out of certain proceedings which are now pending before the Commissioner under the Act.
2. The facts appear to be shortly as follows : Messrs. Jardine Menzies & Co. Architects and Building Contractors, undertook to do the ironwork in connexion with the erection of a garage in Central Avenue, and for that purpose entered into a contract with one Amulya Charan Aich. On 12fch December last, while a khalasi named Golab Khan, now deceased, the husband of the petitioner in this case, was at work on the premises and was engaged in hoisting a beam an iron column post fell upon him, resulting in fatal injuries. The widow of the deceased thereupon applied before the Commissioner for an order on Messrs. Jardine Menzies & Co. to deposit the sum of Rs. 900, as compensation for the death of her husband.
3. Messrs. Jardine Menzies & Co. filed a Written statement denying their liability and submitting that, if they were found to be liable to pay compensation to the applicant they were entitled under Section 12 to be indemnified by Babu Amulya Charan Aich with whom they alleged they contracted for the performance of the work on which the deceased was said to have been engaged, Babu Amulya Charan Aich was accordingly served with notice as provided by the rules under the Act, and duly appeared by pleader and filed a. written statement in which he stated that Messrs. Jardine Menzies & Co engaged one N. Bhattachariya as contractor for the iron work, who again engaged him (Amulya Charan Aich), who in turn engaged Ishak Mia and Maniruddi jointly as contractors to do the ironwork. The proceedings, as already stated, are pending before the Commissioner, and, in the meanwhile, he has submitted this reference, inviting our decision upon a question of law which he has formulated as follows bearing upon the application of Section 12 of the Act:
A undertakes work which is ordinarily part of his trade or business. For the purpose of his trade or business he contracts with B for the execution of part of this work. B similarly contracts with G for the whole or part of the Work he himself has contracted for. One of C's-workmen is killed by accident.
1. Who, for the purpose of Section 12 is the principal?
2. If A is the principal, and is found liable to; pay compensation, by whom is he entitled to be indemnified? If by B then is B in his turn entitled to be indemnified by C.
4. We have considered the relevant sections of the Act and our decision on the two points referred is as follows:
1. The principal for the purpose of Section 12 is A; in other words, in this case, Messrs. Jardine Menzies & Co.
2. Messrs Jardine Menzies & Co. being the principal, are entitled to be indemnified by the contractor to whom they entrusted the work. That this is so is clear from the terms of Section 12(1) of the Act. Whether, however, Messrs. Jardine Menzies & Co. entered into the contract with Amulya Charan Aich, as alleged by them, or with N. Bhattacharjya, as claimed by Amulya Charan Aich, is, of course, a question of fact for the determination of the Commissioner.
5. As regards the further question, whether B is entitled in turn to be indemnified by G, the Act does not appear to provide for such a contingency. The contractor referred to in Sub-section (2) of Section 12, is the contractor who contracts directly with the principal as defined in Section 12(1). If there is any further subletting of the contract, indemnification cannot be obtained under the Act and must be sought by recourse to the civil Court. It may be, as observed by the learned Commissioner, that to hold G liable to indemnify A would-be the construction most workable in practice, and that it would avoid litigation. We cannot, however, read into the Act something that is not to be found there Let the papers be returned to the Commissioner with our opinion.