DIVISIONAL RAILWAY MANAGER Vs. MONEY

JUDGEMENT

(1.) The appellant Railway questions the judgment of the Commissioner for Workmen's Compensation. First respondent filed an application before the Commissioner for Workmen's Compensation claiming that while he was doing Doubling work of Railway Line under the second respondent J & J Constructions, he met with an accident and suffered injuries. Second respondent even though entered appearance through advocate, remained absent and did not file any written statement and did not contest the case. The appellant Railway filed a written statement stating that there was no employer employee relationship between the Railway and the first respondent workman. It was also contended that the Railway has engaged a contractor by name M.D. Simon for doing the doubling work in the area in question and not the second respondent and therefore even as a principal employer they are not liable to pay any compensation to the first respondent workman. It was further contended that they were not informed about the accident and even if Simon who was the contractor engaged J & J Constructions as sub contractor, it is not proved that the accident happened while doubling work of the Railway was done and therefore, it cannot be held that any accident happened in the course of employment connected with Railway. Finally it was contended by learned counsel for the appellant that the Commissioner has calculated compensation on the basis of provisions of the amended Act as amended by Act 30 of 1995 which came into force from 15.9.1995. The accident happened on 10.6.1995 as per the application, i.e., before commencement of the amended Act. Therefore, compensation can be calculated, even if payable, only as per the provisions of the unamended Act.

(2.) The Commissioner has assessed loss of earning capacity at 10%. The above assessment of loss of earning capacity is not questioned. The Commissioner found that the accident occurred during the Railway Doubling work. Commissioner relied on the oral evidence of the applicant as well as the FIR produced in this case. In fact no counter evidence was adduced by the appellant or the second respondent to dispute the averment made by the applicant. No evidence to the contrary was adduced. So finding of the Commissioner that the accident arose during the Railway doubling work cannot be questioned in an appeal under S.30 of the Workmen's Compensation Act. Therefore we are of the opinion that the Commissioner was correct in holding that the accident occurred while the workman was engaged in the work connected with the Railway. It is true that even after filing the written statement by the Railway stating that the Railway contractor was engaged for the doubling work in the area was one Simon, respondent workman (applicant) did not take any steps to implead the contractor. However, it is clear that the ultimate employer in this case was Railway as the work involved was the doubling of railway line and the railway also could have impleaded the contractor. The Railway also did not adduce any evidence before the lower court to show that the railway contractor was Simon and they could have produced contract with the Simon before the Court. That was also not done. No evidence was adduced by the railway to prove terms of the contract also. In any event, evidence in this case clearly show that workman met with the accident during the railway line doubling work. Hence, ultimate employer is Railway. Doubling of railway line is part of trade and part of the Railway. Hence, principal employer is Railway and it cannot escape liability under S.12 of the Workmen's Compensation Act on the ground that it's contractor has engaged a sub contractor. Obligation of the principal employer under S.12 of the Act will not extinguish merely because contractor or sub contractor was not made a party to the application. We hold that principal employer is liable to pay compensation under S.12 of the sub contractor's employees also in the same manner as to the workers employed by the contractor if other conditions in S.12 are satisfied.

(3.) The second respondent did not file any written statement in this case even though it had entered appearance. Categorical averment by the applicant was that he was engaged by the J & J Constructions for the work of the Railway and J & J Constructions was the employer. S.12 of the Workmen's Compensation Act reads as follows: