SIR DHUNJIBHOY BOMANJI Vs. GUNPA KHANDU KOLI

JUDGEMENT

(1.) Plaintiff has filed this suit to recover from the defendants the sum of Rs. 1,225 which he had to pay in the Court of the Commissioner for Workmen's Compensation under the award of the Commissioner dated July 22, 1931. Plaintiff is the sole contractor in Bombay for the coaling of the steamers of the British India Steam Navigation Company, Limited, and does business in the name of Bomanji Dhunjibhoy. In June 1931 the plaintiff had to supply 200 tons of coal to the SS. Hatkhola then lying in the Victoria Dock, Bombay. It is his case that he gave a sub-contract for the purpose to the defendants who are muccadums at the rate of Re. 1 per ton, and that they in turn engaged several workmen on June 11, 1931, one of whom, named Maruti Bala, fell down from the stage on which he was standing at about 9 in the morning by reason of one of the ropes breaking, and sustained fatal injuries of which he died in hospital two days later. On July 8, 1931, his widow filed an application in the Court of the Commissioner claiming Rs. 1,950 as compensation under the Workmen's Compensation Act (VIII of 1923) from Messrs. Mackinnon Mackenzie & Co., the agents of the Steamship Company, for the death of her husband. Messrs. Mackinnon Mackenzie & Co. applied to the Commissioner under Section 12 of the Act, claiming to be indemnified by the plaintiff on the ground that the deceased workman was not employed by them, and on July 13, 1931, the Commissioner served the plaintiff with a notice requiring him either to contest the widow's claim or the claim for the indemnity made against him by Messrs. Mackinnon, Mackenzie & Co. Plaintiff appeared before the Commissioner on July 22, 1931, to contest the widow's claim, and the Commissioner awarded her Rs. 1,200 as compensation and Rs. 25 for costs. Plaintiff in turn now seeks to recover the sum of Rs. 1,225 from the defendants together with an additional sum of Rs. 160 which were the costs incurred by him in contesting the widow's claim.

(2.) Defendants allege in the first place that the suit is not maintainable It is their contention that all claims under the Workmen's Compensation Act must be decided by the Commissioner, and a separate suit cannot lie. Section 12 (I) of the Act provides that where a principal in the course of or for the purposes of his trade or business contracts with a 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, the principal shall be liable to pay to the workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him. Applying this section to the parties concerned in this suit, Messrs. Mackinnon Mackenzie & Co. would be liable to pay compensation as principal, the plaintiff being the contractor. Under Section 12 (2) of the Act Messrs. Mackinnon Mackenzie & Co. being liable as principal to pay compensation would be entitled to be indemnified by the plaintiff, and the sub-clause provides that "all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner," The question that arises, therefore, for consideration is : What is the remedy of the contractor if he claims indemnity from a person who he says is his sub- contractor ? Plaintiff has filed this suit against the defendants under the provisions of Section 13 of the Act which provides inter alia that where a workman has recovered compensation in respect of any injury "caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid". The words in the section refer to the legal liability of "some person other than the person by whom the compensation was paid," whereas the marginal note refers to such a person under the term stranger. The Courts have got to construe the words of a section as they stand, and it has been held by the Privy Council in Thakurain Balraj Kunwar V/s. Rae Jagatpal Singh (1904) L.R. 31 I.A. 132, that a marginal note cannot be referred to in construing the provisions of a section. Do those words, therefore, contemplate a sub-contractor ? And does Section 12 (2) contemplate only one principal and only one contractor, or a series of contractors and subcontractors, each contractor standing to his sub-contractor in the relationship of principal to contractor ?

(3.) The matter is not entirely free from doubt, as the words of Section 12 (2) refer to "any such" indemnity. A similar contention came up for decision in Calcutta on a reference by the Commissioner made to the High Court of Calcutta under Section 27 of the Act, and is reported in Machuni Bibi V/s. Jardiane Menzies & Co. (1928) 32 C.W.N. 452 It was there held that if A, after undertaking work which is ordinarily a part of his trade or business, contracts with B for the execution of a part, B similarly contracts with C for the execution of the whole or a part of the work he himself has contracted for, and one of C's workmen is killed by accident, primarily under Section 12 the person who is liable for compensation is A.A is entitled to be indemnified by B, the contractor who dealt directly with him. But the Act does not provide for the contingency of B being indemnified by C; and it was, therefore, held that B must seek his remedy in a civil Court of law. The contractor referred to in Section 12 (2) is the contractor who contracts directly with the principal as defined in Section 12 (1). If, therefore, there is any further sub-Jetting of the contract, an indemnity cannot be obtained under the Act and must be sought by recourse to the civil Court. The Court held that it might be urged that to hold C liable to indemnify A would be the construction most workable in practice and might even avoid litigation, but it also held that it could not read in the Act what was not there. The words "any such" indemnity, therefore, are, according to this decision, restricted only to one indemnity, namely, between the principal and the original contractor. The plaintiff alleges in paragraph 5 of the plaint that he applied to the Commissioner to put in an application under Section 13, but it was disallowed. The defendants who were not represented before the Commissioner do not admit this allegation, and there is nothing on the record to show whether the application was made and disallowed by the Commissioner. Taking the words of Section 12 (2) and Section 13 together, I agree with the construction put upon them by the High Court of Calcutta, and I hold, therefore, that this suit is maintainable.