FIBRE ALOES FACTORY Vs. JAFFER RASOOL

JUDGEMENT

(1.) This is an appeal under Section 30 of the Workmen's Compensation Act, 1923, against the judgment of the Commissioner dated September 22, 1927, awarding compensation to the respondent. There are two grounds urged before us. One is that the appellant, the Fibre Aloes Factory by the proprietor Amratlal Amarchand had not contracted under Section 2(1) "for the execution by...the contractor of...work which is ordinarily part of the trade or business of the principal," and that the Commissioner wrongly construed the agreement Exhibit 11 as creating the relationship of principal and contractor between the appellants and one Ahmed Ismail. As regards that point we are satisfied that the learned Commissioner was correct in thinking that the agreement comes within Section 12(1). Whether as regards the land in suit the agreement also amounted to a lease as argued by the appellants is in our opinion immaterial. That being so, the appellants are liable to pay compensation under Section 12(1) to any workman employed by their contractor Ahmed Ismail. The respondent Jaffer Rasool was a workman, and accordingly so far as that part of the case is concerned the decision in Mb favour is correct.

(2.) The other point is that the respondent never gave notice as required by Section 10 of the Act. The Commissioner found that his failure to give notice was due to "sufficient cause," but as to that a question of some importance in principle arises. To determine that point we must first have the facts clear. What the Commissioner found is that after the accident the engineer in charge of the factory arranged to send the applicant to J.J. Hospital. Then later on he says :- So far as the contractor is concerned he had ample notice as it was he who arranged to send him to the Hospital. No doubt he had no written notice but under Section 10 (second proviso) the failure to give notice is due to sufficient cause, viz., that the contractor (the immediate employer had full knowledge of it.

(3.) Now the engineer in charge was not the contractor, and consequently to that extent these two statements are contradictory. I appreciate that under Art. 10 (2) the notice in question is to be served on the employer "or upon any person directly responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed." But the engineer did not go into the witness-box, and so far as the evidence before us goes, there is nothing to show that the contractor himself was aware of this accident though possibly one may infer it from the knowledge of the engineer in charge, But on this point we want specific findings.