BHARGAV D. KARIA, J.

1. Heard learned advocate Mr.Bhargav V. Pandya for the appellant and learned advocate Mr.Nishit A. Bhalodi for the respondent nos.1 to 5.

2. By this appeal under Section 30 of the Employee’s Compensation Act, 1923 (for short “the Act”) the appellant has proposed the following substantial questions of law:

“A. The learned Workmen's Compensation Commissioner committed an error in holding that the Opponent is entitled to get Compensation from the present Applicant under workmen Compensation Act, where there is no direct employer employee relationship between them and deceased opponent has never worked with the appellant herein.

B. Whether the learned Workmen's Compensation Commissioner committed an error by way of not considering that the deceased opponent was the employee of the contractor i.e Opponent No. 2 before labour court therefore he is whole responsible to pay the compensation to the family of the deceased opponent or not.

C. Whether the learned Workmen's Compensation Commissioner committed an error by way of not verifying and calling the record to decide employer employee relationship between appellant and deceased opponent, without verify the record of actual work done by deceased opponent the learned Workmen's commissioner has straight away fixed the liability of the Appellant (as an employer) to pay the compensation is not just and proper.”

3. The brief facts of the case are as under:

3.1. That, the respondents had filed a Workmen's Compensation (Fatal) Application No. 09 of 2017 before the learned Workmen's Compensation Commissioner, Labour Court, Dahod on behalf of himself, as the deceased died at the Age of 45 years therefore they have made a claim for compensation of Rs.10,16,640/- under the Employee’s Compensation Act, 1923 (for short “the Act”).

3.2. Deceased Shri Ratansinh Ramsinh Damor on 18.03.2016 went for colouring the Water tank at Village Dhoranpardi opposite Gaay Pagala Temple, Taluka: Kamrej, District: Surat. When he was coloring the water tank at around 9:15 A.M. he fell on the ground from approx. height of 60 feet, due to which he was injured on his head and immediately died on the spot. A complaint of Accidental Death No.28/16 was filed before Kamrej Police Station on 18.03.2016 under Section 174 of Criminal Procedure Code.

3.3. As per the respondents though they had asked the compensation through notice, appellant did not reply and did not pay any compensation.

3.4. That, the learned Workmen's Compensation Commissioner passed an order in the said application on 21.01.2022 holding that the Appellant and others were liable to pay the amount of compensation amounting to Rs.6,12,360/-, Rs. 3001/-for expense and Rs.5000/- for cremation ceremony jointly and severally. The learned Commissioner further directed the Appellant to pay 12% simple interest on the amount of compensation from the date of death i.e 18.03.2016 till the date of payment and also directed to pay the amount of Penalty 25% of total compensation i.e. Rs.1,53,090/-.

4. Learned advocate Mr.Bhargav Pandya for the appellant submitted that the Court below could not have held the appellant is liable under the provisions of the Act as the appellant never employed the deceased Ratansinh Ramsinh Damor for the colour work and it is only the respondent nos.2 and 3 are responsible for payment of compensation for his tragic death as he was doing the colour work of the water tank of the appellant.

4.1. It was further submitted that as per the provision of Section 12(1) of the Act the appellant is not liable for the payment of compensation to the claimants who are legal heirs of the deceased person.

4.2. Reliance was placed on the decision of the Division Bench of Calcutta High Court in case of New India Tannis Limited Vs. Aurora Singh Mojbi reported in 1956 LawSuit(Cal) 176, more particularly in paragraph nos.1 and 15, which reads as under:

“1. The appellant-company carries on the business of making extracts of myrobalan and exporting the same to foreign, countries. It has a factory called 'Rong Kuti' where its manufacturing business is carried on. Early in 1953, the chimney needed re-pairs and by a letter written on the 18th of March, the appellant-company engaged one Hazara Singh to dismantle the upper portion of the chimney and hoist a new length of chimney instead. In pursuance of that contract, the work was taken up by Hazara Singh through his men and while the work was being carried on, one Bishan Singh who, among others, was engaged in it, fell from a height of sixty feet and met with an instantaneous death.

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15. I have already referred to the nature of the contract. I am free to confess that it may be said to satisfy the first part of Section 12(1) which speaks of a contract entered into "in the course of or for the purposes of his trade or business. It can. I think be legitimately said if a company, carrying on the business of manufacturing goods in a factory, enters into a contract for the purpose of some repairs to its machinery or the factory building, such contract is entered into in the course of and for the purpose of the company's trade or business. The requirement of the second part of the section, however, is altogether different. What is required there is that the work to the execution of which the contract relates, must be one "which is ordinarily part of the trade or business of the principal". I find it wholly impossible to hold that where a company carries on the business of manufacturing goods and requires a factory for performing the manufacturing process and the factory requires a chimney, the work of occasional repairs to the chimney is a part of the ordinary trade or business of the company. The business of the company in such a case is to manufacture the goods which it produces. The manufacture may be done inside a factory and the factory may require a chimney which would occasionally need repairs, but repairing the chimney can in no, view be a part of the company's trade Or business, whether ordinarily or extraordinarily. In my view, the learned Commissioner was altogether wrong in holding against the appellant-company on the basis of a supposed admission in its written statement and equally wrong in his construction of the contract as also in the view taken by him of the nature of the work, for which the contract was entered into, in relation to the appellant-company's business. The order made by him cannot possibly be upheld.”

4.3. Learned advocate Mr.Pandya for the appellant referred to and relied upon the decision of this Court in case of Gujarat Electricity Board Now, Converted as Uttar Gujarat Vij Company Limited Vs. Sureshbhai Maganbhai Vankar rendered on 06.12.2021 in First Appeal NO.3444 of 2019, wherein this Court in alternative modified the order of the Commissioner to the extent that if the amount of compensation is recovered from the appellant the appellant was given liberty to recover the same from the respondent no.2 in accordance with law, in view of the provision of Section 12 (1) and (2) of the Act.

5. On the other hand learned advocate Mr.Nishit Bhalodi for the respondent nos.1 to 5 submitted that the impugned judgment and award is passed after considering the contention which are raised before this Court by the Workmen Compensation Commissioner and there is no dispute to the fact that the deceased was employed for carrying out the colour work of the water tank of the appellant by respondent nos.2 and 3 and the colour work contract was given to the respondent nos.2 and 3.

6. Having heard learned advocates for the respective parties and considering the impugned judgment and award and the evidence on record, it is not in dispute that there was a contract between the appellant and respondent no.2 for colour work of the water tank. As per the contract, respondent no.2 had employed the deceased Ratansinh Ramsinh Damor for colour work and it has emerged from the evidence that the deceased was working for colour work for more than two weeks and he had fallen down while doing the colour work and expired. Therefore, there is no error committed by the Court below in fastening the liability of payment of compensation on the appellant and the respondent nos.2 and 3 jointly and severally without reserving liberty in favour of the appellant to recover the compensation from respondent nos.2 and 3.

7. Section 12 (1) and (2) of the Act reads as under:

“12. Contracting.– (1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in the section referred to as the 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 any 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; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.

(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation] and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.”

8. On perusal of Section 12(1) of the Act the appellant being the Principal is liable to pay compensation to the claimants. But as per the provision of Subsection (2) of Section 12 of the Act, the appellant is held liable to pay the compensation to the workman and he can recover the same from the contractor.

9. The decision relied upon by the learned advocate for the appellant in case of New India Tannis Limited (Supra) the facts were totally different as the compensation was given to the person who had suffered the injuries and succumbed to death while repairing the chimney which is not either part of the trade or business of the Principal. In such circumstances the Court came to the conclusion that the award could not be passed under the provisions of the Act. Whereas in the facts of the present case, it is not in dispute that the water tank belonged to the appellant who was providing the water supply service for the benefit of the public at large and in such circumstances, provision of Section 12 of the Act would apply.

10. Similarly, Subsection (2) of Section 12 of the Act also cannot be said to be applicable to the facts of the case as the water tank was of the ownership of the appellant and therefore it was rightly held by the Commissioner that the appellant was jointly and severally liable for making the payment of compensation to the claimants.

11. In view of the above, no interference is called for and the appeal being devoid of any merit is hereby ordered to be dismissed. Notice is discharged. No order as to costs. The amount deposited by the appellant as a precondition to file this appeal before the Court below shall be paid to the claimants after due verification. In view of the dismissal of the First Appeal, the Civil Application also stands dismissed. NO order as to costs.