VINOD SHARMA Vs. ABDUL HASSAN & OTHERS

JUDGEMENT

(1.) Uncontrovertedly the predecessor-in-interest of respondents/claimants met his end on 21.8.2004 while standing deployed as a labourer for completing the house of the appellant herein. His demise on the aforesaid date at the afore-referred place occurred on account of his suffering an electric shock from an electric wire hanging over the site whereat he was performing work as a labourer for completing the construction of the house of the appellant herein. The learned Commissioner under Workmen's Compensation Act (for short the Commissioner ) under his impugned rendition while concluding from the evidence as stood adduced before him of the respondents No. 2 to 4 (for short claimants ) being dependent upon the income of their predecessor-in-interest, assessed compensation in their favour in a sum of Rs. 303269.00. However the aforesaid amount as assessed by the learned Commissioner as compensation to the claimants was ordered to be defrayed to them in equal proportion by both the appellant and respondent No. 1 herein.

(2.) Evidently the trite conundrum which is enjoined to be put at rest by this Court is whether the deceased Mohd. Hussain died during the course of his standing engaged by appellant or respondent No. 1. Each of the aforesaid contrarily contend of the deceased standing engaged by other. Hence they concert to escape the liability as stands fastened upon them by the learned Commissioner in the manner afore stated. Since respondent No. 1 herein has not filed any appeal impugning the rendition of the learned Commissioner hence omission in the aforesaid regard estops the learned counsel for respondent No. 1 to contend of the fastening of liability upon him by the learned Commissioner in the aforesaid manner suffers from a legal fallibility. Only the appellant herein has contended of the impugned award of the learned Commissioner fastening liability upon him equal to the liability fastened upon respondent No. 1 herein warranting interference on the anchor of imminent upsurgings occurring from evidence in display of the deceased/workman standing engaged by respondent No. 1 herein through whom under an agreement executed inter-se him and the appellant herein, the respondent No. 1 executed construction of his building. The learned counsel for the appellant has contended of the learned Commissioner unwarrantedly omitting to fasten tenacity to an agreement executed inter-se the appellant and respondent No. 1 herein detailing therein the factum of respondent No. 1 accepting the execution of work of construction of the building of the appellant herein. However the aforesaid submission addressed before this Court by the learned counsel for the appellant is bereft of any vigour as the appellant herein had abstained besides omitted to cast apposite pleadings in his reply to the claim petition preferred before the learned Commissioner in portrayal of no liability for compensation if any as may come to be assessed by the learned Commissioner being fasten-able upon him given the factum of execution of a valid agreement inter-se both where under respondent No. 1 herein stood appointed as a contractor for execution of the work of construction of his house. The effect of the aforesaid omission is of the appellant abandoning and waiving at the outset the aforesaid defence also its import is of any reliance upon any agreement executed inter-se the appellant herein and respondent No. 1 herein with recitals occurring therein of both executing a contract where under respondent No. 1 was enjoined to complete the construction of the house of the appellant was unwarranted also even if the apposite agreement stood adduced into evidence it being beyond pleadings was unreadable in evidence. In sequel, on anvil of agreement executed inter-se the appellant and respondent No. 1 where under the former purportedly appointed respondent No. 1 as a contractor to complete the construction of his house, the counsel for the appellant cannot make any capitalisation whereupon he strives for his standing exculpated from the liability fastened in the manner ordained in the impugned award to defray compensation to the claimants. The learned counsel for the appellant has adverted to certain elicitations unearthed by the learned counsel representing the appellant before the learned Commissioner during his subjecting respondent No. 1 to cross-examination especially the ones manifesting the factum of his equivocating qua the factum of his in the capacity as a contractor executing the work of construction of houses of Hans Raj brother of Hem Raj. He also adverts to that portion of the cross-examination of respondent No. 1 as held by the learned counsel for the appellant therein, wherein he concedes to the factum of his making payments to the labourers who carried out construction work of the house of the appellant herein. However even if respondent No. 1 equivocated qua the factum of his standing engaged by Hans Raj brother of Hem Raj as a contractor to complete the construction of their respective houses, nonetheless even if the implication of his equivocating qua the aforesaid factum is of his hence impliedly acquiescing to his standing engaged by the aforesaid to complete the construction of his house however the acquiescences qua the aforesaid factum cannot ipso facto render an inference of respondent No. 1 also standing engaged as a contractor by the appellant herein for completing the construction of his house also the factum of respondent No. 1 conceding to his receiving payments for remitting them onwards to the labourers who carried out construction work for completing the house of the appellant herein cannot per se constitute potent or vigorous evidence for thereupon this Court holding with firmness of the appellant herein proving unflinchingly of his engaging respondent No. 1 as a contractor for completing the construction of his house rather his receiving payments from the appellant herein for theirs being remitted onwards by him to the labourers constituting a method or a device evolved by the appellant himself for conveniently given his preoccupation as a businessman to through respondent No. 1 remit wages of the labourers working at the site whereupon construction activity stood carried out. With this Court concluding of the purported agreement executed inter-se the appellant and respondent No. 1 whereupon the latter stood appointed as a contractor by the former for completing the construction of his house holding no evidentiary worth also its being unreadable in evidence whereas it constituting best evidence in display for succoring the contention of the learned counsel for the appellant of his appointing respondent No. 1 as a contractor for completing the construction of his house whereupon he has proceeded to further espouse of the liability in the manner aforesaid fastened upon him by the learned Commissioner meriting interference also concomitantly renders the espousal aforesaid to stand benumbed. The effect of elicitations if any of admission if any from respondent No. 1 herein by the learned counsel for the appellant herein during the course of his holding him to cross-examination qua which an allusion stands made herein above also hold no vigour or tenacity for this Court to thereupon conclude of respondent No. 1 executing construction work of the house of the appellant herein in the capacity of a contractor nor also this Court can hold of the deceased standing not engaged by the appellant herein nor can this Court conclude of his at the apposite stage not holding any employment under the appellant herein. Necessarily when this Court hence holds of the deceased standing engaged by appellant herein, the fastening of liability upon the appellant by the learned Commissioner under the impugned award does not warrant any interference.

(3.) Be that as it may there is an unequivocal testimony of RW-3 of even respondent No. 1 performing work in the capacity of a labourer for completing the construction of the house of the appellant herein. Also an advertence to the provisions of sub Sec. (1) of Sec. 12 of the Workmen's Compensation Act, 1923 (for short the Act ) which stands extracted hereinafter would unveil the factum of even if assumingly respondent No. 1 is construed to be a contractor appointed by the appellant herein besides assumingly the purported agreement executed inter-se the appellant and respondent No. 1 herein stands imbued with a virtue of validity nonetheless on anvil thereof the learned counsel for the appellant would yet not succeed as with sub section (1) of Sec. 12 of the Act encapsulating the sine qua non for on satiation whereof by potent evidence would strengthen the submission of learned counsel for the appellant qua his hence standing exculpated qua the liability as stands fastened upon him by the learned Commissioner in as much as on its satiation occurring by invincible proof emanating or standing displayed of his carrying out construction activity as part of his trade or business. However when the appellant contrarily holding construction of his personal house necessarily when he also hence has not proved thereby his carrying construction of his personal house as part of his trade or business. In sequel, with the aforesaid sine qua non for attracting besides rendering it workable for succoring the espousal of the learned counsel for the appellant stands unsatiated, the vigour if any of even if assumingly the purported agreement entered inter-se him and respondent No. 1 holds it hence standing sapped of its vigour and strength.