1. This is an appeal from the order of the Commissioner for Workmen's Compensation, Bengal. The applicant was a workman engaged by one Kamil Sardar to do the work of putting up certain joists in a building in Park Street. Kamil Sardar was employed as a contractor by the Karnani Industrial Bank. It appears that the Karnani Industrial Bank was causing this house to be put up and it was getting the house put up by contracting with different people to do different parts of this work. It had evidently not entered into a contract with one builder to do the whole work, but it entered into contracts with particular persons employed in that behalf that particular parts of the work should be done on behalf of the bank. In these circumstances, the applicant having met with an injury by a joist falling on his leg, the commissioner has fixed the compensation at a lump sum of Rs. 514. Originally, the application was brought against Rai Bahadur Sukhlal Karnani personally but, in view of the written statement, the Karnani Industrial Bank was added as an opposite party and, in the end, the commissioner has made this award against the bank. The matter coming before us, it is pointed out that the liability of the bank depends upon the terms of Section 12, Act 8 of 1923.
2. That section deals with a case where the principal, as it calls him, in the course of or for the purpose of his trade or business contracts with any other person called the contractor for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal. If these conditions are fulfilled, the principal is made liable for compensation to the contractor's men. The first question therefore to which the commissioner had to address his mind was; Is it ordinarily part of the trade or business of this bank to put up joists as a house building operation Any ordinary notion one has of banking business would lead one prima facie to give a firm answer in the negative to that suggestion. The only evidence that was before the commissioner to satisfy him that it was ordinarily part of the business of this bank to undertake the erection of joists in a house is the circumstance that in the Memorandum of Association of the Limited Company, there is among the thirty-six objects of the usual redundant character one No. 14 which says:
To build, erect, construct, lay down, enlarge, alter, equip, improve and maintain any offices, buildings, warehouses, godowns factories, wharves, mills, jetties, roadways, tramways, railways.
3. On the basis and on the basis of the fact that this bank was building this house, the commissioner found in favour of the applicant saying this:
It is clear that the bank constructed the house in the course of its business as such bank and it is clear also from paras, 13 and 14 of the Memorandum of Association of the Karnani Industrial Bank Limited that the bank was competent to do so.
4. I quite agree with the commissioner that these two propositions are both clear; but they are not the tests laid down by Section 12. The general notion of Section 12 is that, if it is ordinarily part of the business of a person to execute certain work, then ordinarily he will do that work by his own servants; he is not to escape liability for any accident that takes place merely by interposing a contractor, the contractor undertaking to do what ordinarily the principal would do for himself. But, if anybody is entitled to say that he is outside that principle if, for example, he went to a builder to build a house for him, I should suppose that body to be a bank which ordinarily would not take house building operations into its own hands at all. Of course, my notion of banking business may not be the same as the notion of the Karnani Industrial Bank. Merely because it is called a bank, I cannot say, as a matter of law, that it has not got this business of a speculative builder or the business of building houses for itself. I cannot say that it is not part of its ordinary business except upon some evidence. It seems rather extraordinary that any person engaged in banking business should go so very far from ordinary banking business, but in the particular circumstances of this case, as neither the parties nor the commissioner appear to have appreciated what the test is in the act, it would only be fair to the applicant to let the matter go back to the commissioner to have this question determined upon evidence if there is any reason to suppose that putting up a house is ordinarily part of business of the bank. I may say here that it is by no means evident to me that Clause 14 of the Memorandum of Association was intended to entitle the bank to build houses in the sense of building them itself as distinct from getting them built in the ordinary way as one would expect a bank to do. There is Indian authority upon the meaning of Section 12 in the case of Rabia v. The Agent, G.I.P. Ry. AIR 1929 Bom 179. In these circumstances, this appeal must be allowed, the order of the commissioner must be set aside and the matter must be remanded to him to deal with this question of fact upon further evidence according to law. There will be no order as to costs in this appeal.
5. I agree that this matter should go back for further consideration by the learned commissioner. It is to be observed that the language of Section 12 of Act 8 of 1923 is somewhat more specific than the language used in the corresponding section of the English Act of 1925. That section is Section 6. The words there are:
Where any person (in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay any workman employed in the execution of the work any compensation under this Act, etc.
6. So Section 6 of the English Act applies where the work is 'undertaken' by the principal. Even so, the English authorities are all one way in this respect: the work must be of a kind which is part of the business or trade of the principal who carries it out. The words of the Indian Statute, as I have said, are even more specific because the section says that the work must be work 'which is ordinarily part of the trade or business.' In this connexion I would refer to the ease of Skates v. Jones & Co. (1910) 2 KB 903. In that case, the respondents were two shopkeepers. They also kept a billiard saloon. They were minded to join together in running a skating rink. They bought an existing iron structure and made a contract with a person for its removal and re-erection. The applicant, that is to say, the workman while employed on this work by the person with whom the two shopkeepers contracted was injured by accident and in respect of his injuries he claimed compensation from the respondents, that is to say, the two shopkeepers who were the principals. It was held that the work in which the applicant was injured was not undertaken in the course of or for the purposes of the respondents' trade or business and that therefore they were not liable to pay compensation. Also it has been held in English authorities that it is the duty of the arbitrators as is there called, and therefore in India it is the duty of the Commissioner in India, to find as a fact that the work undertaken is so undertaken as part of the ordinary trade or business of the person or persons who are to be put in the position of the principal for purposes of Section 12. Looking at the judgment of the learned Commissioner it does not appear that he has fully directed his mind to the importance of that part of Section 12 because I find that he says at the top of p. 21 of the paper book:
The learned pleader's argument on behalf of the opposite party No. 2 based on the language of Section 12 does not assist the employer for the present proceedings are not indemnity proceedings.
7. That observation of the learned commissioner seems to indicate that he has not considered the question of whether or not the erection of the building with which this matter is concerned was ordinarily part of the business of the Karnani Industrial Bank. I agree with my Lord therefore that this matter should be remanded. It is desirable and necessary that there should be a definite finding on that question.