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Judgment
This is an appeal under Section 30 of the Employees Compensation Act, 1923 from the judgment and award dated 06.05.2015 delivered in TS (WC) 33/2011.
This is an appeal by the dependents of one Uttam Debbarma who was electrocuted while working on the overhead electric line within Assam Rifles Complex at Hrangkhawl para, Teliamura on 08.09.2011. The said electric line is managed, maintained and regulated by Tripura State Electricals Ltd., the respondent No.1 represented by the respondents No.2 and 3. According to the dependent-appellants, the respondent No.4 engaged Uttam Debbarma having been authorized by the respondent No.1. The deceased employee died in the course of and out of the employment from the said accident. While the deceased employee was working on the electric line, power supply was shut down, but without any notice, all on a sudden the electric line became live and the deceased employee got electrocuted. He was rushed to Teliamura Rural Hospital, but his life could not be saved. There is no dispute that there was an inquiry under Section 174 of the Cr.P.C. for the said unnatural death. The respondent No.1 is the principal employer of the deceased employee and thus they are liable to pay the compensation in terms of Section 4 of the Employees Compensation Act, 1923. At the time of the accident the deceased was 21 years of age and according to the claimant-appellant he had been earning a sum of Rs.18,000/- from his contractor as the monthly wage. The deceased was the only earning member in the family. The notice claiming compensation was sent to all the respondents but there was no positive yield and as such a petition under Section 4 of the Limitation Act was filed by the dependant- appellant. After the inquiry, the Commissioner for Employees Compensation passed the award to the extent of Rs.8,95,840/- including the funeral expenses with interest @ 12% per annum from 09.10.2011 i.e. one month after the date of accident till realisation.
The principal grounds of objection in this appeal are that (1) the monthly wage of the employee has been determined unreasonably (2) the liability of the payment ought to have been shifted to the principal employer, the Tripura State Electricity Corpn. Ltd. [the respondent No.1] in terms of Section 12 of the Employees Compensation Act, 1923 inasmuch as Section 12 provides that the principal respondent is liable to pay compensation under the provisions but he shall be entitled to be indemnified by the contractor or any other person from whom the employee could have recovered compensation where a contractor who himself is a principal employer and is liable to pay compensation or to indemnify the principal in view of the said section. It has been further provided that the principal employer shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the employee could have recovered compensation 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 and (3) whether the compulsory retention in the fixed deposit to the extent of 70% of the award for 10 years is too harsh that would further impede the upbringing and maintenance of the dependent.
Mr. D. R. Chowdhury, learned counsel appearing for the appellant has submitted that the Commissioner for Employees Compensation has completely misconstrued the provisions of Section 12(2) of the Employees Compensation Act. That apart, the assessment of the monthly wage is completely unreasonable. Mr. Chowdhury, learned counsel has also stated that the respondent No.6 since has remarried cannot get the share of the compensation. All these issues have been considered as the substantial question of law on which this appeal has been admitted. Mr. Chowdhury, learned counsel has in particular emphasized that the manner in which provisions of Section 12 relating to contracting has been interpreted and applied cannot be accepted. According to Mr. Chowdhury, learned counsel, Section 12(1) and Section 12(2) cannot be read isolatedly inasmuch as sub-section 12(2) of the Employees Compensation Act, 1923 is species to Section 12(1) of the said Act.
For the respondents No.1, 2 and 3, Ms. S. Deb (Gupta), learned counsel has appeared and submitted that the respondent No.4 has completely denied that the deceased person was his employee. There is no existence of contract between the respondent No.1 and respondent No.4. The respondents No.1, 2 and 3 by filing their written statement has categorically stated as follows:
"That the answering Ops after long search could not trace out any paper regarding any work as was executed by the OP No.4 when the alleged accident took place. So, it is the duty of the claimant-petitioners to prove that deceased Uttam Debbarma died under whose employment and under what circumstances.
If the claimant-petitioners are able to prove that deceased Uttam Debbarma died in course of his employment under the OP No.4 at the time of performing the work of the answering Ops, then as per Sub-Section-2 of Section-12 of the Employees Compensation Act the OP No.4 is liable to indemnify the awarded amount, if any would be awarded, i.e., the answering Ops will be entitled to realize the said awarded amount, if any, from the OP No.4."
In absence of any relation based on the contract, Section 12 of Employees Compensation Act, 1923 cannot be applied. In the case in hand, Ms. Deb (Gupta), learned counsel has submitted that there is no such foundation and the claim of shifting the liability on the respondents No.1, 2 and 3 are in the vacuum of the evidence. The respondents No.4 and 5 despite due notice from this court by the substituted service of notice [the notice was published in Tripura Darpan dated 31.10.2017] did not ensure his representation, whereas the respondent No.6 entered in the appearance through Mr. Amar Debbarma, learned counsel but today his representation is found absent, when the matter is called out. It is to be noted that there is no appeal by any of the respondents nor is there any cross objection. As such, this court is persuaded to hold that the finding of fact as returned by the Commissioner for Compensation is not disputed by the respondents. The Commissioner for Employees Compensation has observed that one witness namely Anil Thapa, Deputy Commandant, 38 Assam Rifles, Teliamura (DW-5) has categorically stated in his cross-examination that overhead electricity line within the Assam Rifles Complex was being maintained by the Tripura Electricity Corpn. Ltd. [the respondent No.1] and the length of the overhead line was about 2/3 km. He was cross examined by the respondent No.1. He has clearly admitted that on the day of accident, he was not posted in that Battalion. But he has denied the suggestion that the Corporation did not maintain the electricity line within the Assam Rifles Complex. PW-2, Rabi Debbarma has categorically stated that on 08.09.2011, Uttam Debbarma [the deceased employee], Sri Tapan Debbarma, Sri Mangal Debbarma and others were working within Assam Rifles Complex at Hrangkhawl Para under Teliamura. The staffs from the Corporation were also working with them. He has stated in the examination-in-chief categorically as under:
"We were engaged by the officers of Teliamura Electrical Division and by one Sri Prabir Roy, Contractor under the Deputy General Manager, Teliamura Electrical Division along with electric staff of that area."
In the cross-examination, denial to that statement has been discarded by PW-2 and he had further stated that the deceased employee and he along with others were performing their duties under the control of one Pradip Roy, Contractor [the respondent No.4] and under the supervision of the staffs of the Deputy General Manager, Electrical Corpn. Ltd. On cumulative reading of the entire evidence, it would appear that there is no controversy relating to the said accident and death of Uttam Debbarma by electrocution.
Having regard to the nature of the employment, this court does not find any infirmity in determination of the assessed monthly income of the deceased at Rs.8,000/- per month, particularly in the context, no document from the employer or no admission of the employer is available in the evidence and hence this court does not find any substance in the plea of enhancing the monthly income index. But this court finds sufficient persuasive force in the plea that the respondents No.1, 2 and 3 and for that matter the respondent No.1 as the principal employer and the respondent No.4 being a contractor, were carrying out in the work which is ordinarily the part of the trade or business of the principal. Hence, the principal is liable to pay the compensation to the dependents of the deceased employee who was employed for execution of the work. The principal employer, therefore, is liable to pay, as it appears that the respondent No.4 was working as the contractor of the principal employer. Sub-Section 2 of Section 12 of the said Act provides indemnification for the contractor. However, Sub- Section 3 of Section 12 of the said Act provides that nothing in that section shall be construed as preventing an employee from recovering the compensation from the contractor instead of the principal. Having due regard to those provisions of Section 12 of the said Act, this court is of the view that the Commissioner ought to have directed the respondent No.1 to pay the award in terms of Section 12(1) within a specified period. Hence, interference in that finding is essentially called for. It is accordingly interfered with.
It is directed that respondent No.1 represented by the respondent No.2 shall pay the entire compensation as awarded by the Commissioner, Employees Compensation within a period of two months from the day when a copy of this order be received by the respondents No.1, 2 and 3. Needless to say that the award shall include interest @ 12% per annum from 09.10.2011 till realisation. This court is of the further view that keeping the proportionality of dependency, the defendant-appellant No.1 shall get 30% of the total award [inclusive of the interest] and the dependent-appellant No.2 shall get 70% of the award [inclusive of the interest]. This court is not inclined to award any share of the award to respondent No.6 who has remarried immediately after death of the deceased employee. So far the retention is concerned the dependent-appellant No.1 shall be allowed to withdraw the entire share but no amount shall be allowed to be withdrawn from the share of the dependent-appellant No.2 [the minor] till she attain 21 years of age. However, the dependent-appellant No.1 shall be permitted to withdraw the cumulated interest on quarterly basis from the term deposit where the share of the minor will be managed by order of the Commissioner, Employees Compensation. Necessary direction shall be issued to the bank where the said term deposit will be opened and maintained to that effect by the Commissioner, Workmen's Compensation.
In terms of the above, this appeal stands partly allowed.
Send down the LCRs forthwith.