T. Vinayaka Mudaliar vs Mindala Pottiamma

Mack, J.—This appeal under the Workmen's Compensation Act raises for determination an interesting point which does not appear to have been specifically decided in any reported case. The appellant is one Vinayaka Mudaliar who claims to be by vocation a printer. He engaged one Munuswami a cooly, as a mason along with another Munuswami P. W. 2 to construct a house without engaging the services of any contractor. The former Munuswami died on 18-12-1948 as a result of being engulfed in earth. His widowed mother filed an application, it would appear, on 11-4- 1950 for compensation, under the Workmen's Compensation Act. The Commissioner awarded her Rs. 2400 under Schedule IV negativing the contention of the employer that the deceased was not at the time of the accident a workman within the meaning of Section 2(1)(n) of the Act.

According to P. W. 2 he and the deceased Munuswami were each paid Rs. 3 a day by the appellant who used to build houses and let them on

rent. They had constructed or were constructing three houses for him. This has not been specifically denied in the witness-box by Vinayaka Mudaliar, who took the position that the deceased Munuswami was employed by the maistry who was supervising the work and was paid by him.

The definition of a workman u/s 2(1)(n) excludes a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business. The simple point for determination in this appeal is this: Did Vinayaka Mudaliar employ this deceased mason for the purpose of his trade or business? Mr. K. R. Krishnaswami for the appellant has relied on some decisions u/s 12, Workmen's Compensation Act, which casts upon the principal who contracts with another person for the execution of the whole or any part of any work which is ordinarily part of the trade or business of the principal, liability under the Act If a workman engaged by the contractor sustains injury. In --

"Kavnani Industrial Bank Ltd. v. Ranjan", 60 Cal 24, it was held that house building was not ordinarily part of the trade or business of a bank and a bank which had contracted with different people to do different parts of house-building work was held to be not liable as a principal, u/s 12.

There was reference in that decision to -- "Skates v. Jones & Co.", (1910) 2 K. B. 903, in which two shopkeepers who also kept a billiard room joined in running a skating rink and entered into a contract with a person to remove and re-erect the iron structure which they purchased. It was held that the two shopkeepers were not liable as principals as the work in which the workman was injured was not part of their trade or business.

Another decision to the same effect is -- "Rabia Mahomed v. Agent G. I. P. Rly.", 53 Bom 203, in which the G. I. P. Railway entered into a contract with a company to construct a transmission line to carry electric power to various sub-stations on the railway. The deceased workman was employed by the contractors and died in the course of such employment. It was held that the railway were not liable as the setting up of overhead electric cables for the purpose of transmitting electric power to the railway was not ordinarily part of the trade or business of the principal, i.e., the railway u/s 12.

This is not a ease coming within the scope of Section 12, there being no principal and no one under any contractual relationship with the principal who actually employed the workman. The point arising for determination must be answered with reference to the definition of workman in Section 2(1)(n) of the Act. In the present case the deceased workman's employment was admittedly not of a casual nature. The point is whether he was employed for the purpose of Vinayaka Mudaliar's "trade or business". The evidence shows that Vinayaka Mudaliar had built three houses by directly employing masons without resort to a contractor. If he had engaged a contractor he would quite clearly not be liable as a principal u/s 12 of the Act. Not having engaged any contractor and himself having engaged workmen directly to build the houses in which presumably he had invested capital with a view to obtaining profit and gain to himself, it is extremely difficult to hold that he did not employ this workman for the purposes of his business. It is urged that his main business was printing. I do not think that liability to compensate a workman can be avoided by an employer having several businesses, say of printing, house construction and also manufacture other than printing. The position may be quite different if a person in the construction of a house for his own residence directly employs workmen. In such a case it would not be possible to hold that the workman was employed for the purposes of the employer's "business". But when a person employs a workman to build a number of houses, as in the present case, without the service of any contractor, he must be deemed to have employed him for the purpose of his business.

There is such a thing as a subsidiary business as apart from a main business. Otherwise if a different view were to be taken it would mean that the liability to compensate a bona fide workman as defined in Section 2(l)(n) of the Act can be defeated by employers on the pretext that they have more than one business. I think the Commissioner has rightly held that the deceased Munuswami was a workman u/s 2(1)(n) whose widowed mother was entitled to compensation under the Act.

Another point has been taken, namely, that this claim was filed after nearly 16 months, on 11-4-1950, whereas u/s 10 of the Act a limitation period of one year is prescribed. The proviso, however, gives the Commissioner full discretion to decide any claim to compensation not withstanding that notice has not been given or the claim has not been preferred in due time if he is satisfied that the failure was due to sufficient

cause. The applicant in this case gave an explanation, namely, that notice of the accident was not served by reason of the applicant having applied to the opposite party for payment of compensation on several occasions and to his giving her Rs. 40/- for funeral expenses and putting her off by all sorts of evasive replies. This point does not appear to have been taken before the Commissioner, and I can only presume that he was satisfied that the failure to make the claim in time was due to sufficient cause. The appeal in the result is dismissed with costs.