The work of occasional repairs to a factory chimney is not a part of the ordinary trade or business of a company that manufactures goods in the factory.

( 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.

( 2 ) ON the basis of the death of his son by the accident of the fall, respondent No. 1, Aurora Singh Mojbi, made an application for compensation against the appellant und-r the Workmen's Compensation Act. He alleged that Bishan Singh had been employed by the appellant and while so employed, had received personal injury by accident arising out of and in the course of his employment which had resulted in his death. The appellant-company by its written state rent disc aimed liability. The plea taken was that the wont of the fitting of the chimney had been given on contract to Hazara Singh, who was an independent contractor, and that the deceased, while he might have been an employee under Hazara Singh. was never an employee under the appellant. Obviously, with the provisions of Section 12 (1) of the Act in. mind, the appellant-company added that the work of fitting the particular chimney or chimneys in general was not a part of its ordinary trade or business. Having taken that plea, however, the appellant company proceeded abruptly to pray that Hazara Singh might be made a party to the proceeding under Section 12 (2) of the Act. That prayer was followed up by another contained in paragraph 7 of the written statement which stated that if the appellant-company was made liable for compensation, its right to be indemnified by the contractor to the extent of the decretal amount might be declared.

( 3 ) THE compensation claimed was Rs. 2400/-on the basis of monthly wages ranging between Rs. 60/- and Rs. 80/ -. With regard to the amount of the claim, the appellant-company stated that it did not know what the wages of the deceased had been, but it would submit that his wages could not have exceeded Rs. 30/- or Rs. 35/- per month.

( 4 ) THE learned Commissioner for Women's Compensation decreed the claim against the appellant-company for Rs. 1803/- together with costs, but he directed that the appellant company would be entitled to be indemnified by Hazara Singh to the extent of the decretal amount. It is against that order that the present appeal has been preferred.

( 5 ) IT will be seen from what I have already stated that the learned Commissioner held the appellant-company liable on the footing that it had contracted with Bazars, Singh in the course of and for the purposes of its trade or busin ss for the execution of a piece of work, namely, the hoisting of a portion of a chimney, which was ordinarily, a part of its trade or business. Mr. Sanyal who appears on behalf of the appellant-company contended that the view taken by the learned Commissioner was utterly wrong and that the foundation on which he had made it rest was wholly unsound.

( 6 ) I am of opinion that the contenlion of Mr. Sanyal must prevail. The learned Commissioner has based his finding almost e tirey on the plea taken by the appellant-company in its written statement. He has said that since the appellant-company had prayed for an order of indemnity against Hazara Singh, it had admitted that the hoisting of the chimney was a part of its ordinary trade, or business and that, having made that admission, it could not consistently plead to the contrary and say that the hoisting of the chimney could not be and was not a part of its ordinary trade or business. "the prayer