Vicarious liability under Section 304(A) I.P.C does not apply when the work contract agreement absolves the owner of liability and there is no evidence of negligence on the owner's part.

G K Ilanthiraiyan, J.

This Criminal Original Petition has been filed to quash the criminal proceedings in C.C.No.7 of 2009 on the file of the learned Judicial Magistrate VI, Madurai and have taken cognizance for the offence punishable under Section 304(A) I.P.C as against the petitioner and another.

2. The case of the prosecution is that on 16.02.2001, the wife of the deceased lodged a complaint alleging that the defacto complainant's husband was working in the petitioner's construction under the supervision of one Subramani, who is arrayed as Accused No.2 in the above case. The said Subramani is a contractor. Further, she alleged that her husband had worked without proper protection made by the Accused No.2 and this petitioner herein. Due to negligence and carelessness of the above petitioner and another, her husband died because of debris of sand fell down on him. Therefore, he died. Hence, the complaint.

3. The learned counsel appearing for the petitioner would submit that there is no iota of evidence available to attract the offence under Section 304(A) I.P.C as against the petitioner herein. Admittedly, the petitioner is the owner of the building and Accused No.2 is a contractor of the petitioner. As far as the petitioner is concerned, he had entered into the building construction contract with the accused no.2 by an agreed dated 11.02.2008. In the said agreement, there is a specific clause i.e. whenever the accident or untoward incidents happened, the labour contractor is liable for all the incidents took place during the construction and the owner of the building is no way liable for anything. Further, he would contend that the defacto complainant also filed a claim petition before the Deputy Commissioner of Labour Court, Madurai, in which, the Deputy Commissioner of Labour directed the petitioner to pay the compensation on behalf of the accused no.2 as a sum of Rs. 4,33,060/- and recover the same from the accused no.2. Therefore, he prays to quash the proceedings in C.C.No.7 of 2009 on the file of the Judicial Magistrate No. VI, Madurai.

4. Per contra, the learned counsel appearing for the second respondent would submit that though the petitioner is the owner of the building, he is vicariously liable for the offence under Section 304(A) I.P.C. The petitioner did not provide any safety measures on the work in progress. Therefore, because of the negligence of the petitioner and another, the defacto complainant's husband died in the said accident by debris fell down on him. Though she received compensation under Workmen Compensation Act, it would not prevent criminal prosecution as against the petitioner. Therefore, he sought for dismissal of this quash petition.

5. The learned Government Advocate (Crl.Side) appearing for the first respondent would submit the based on the negligence contributed by the petitioner and another, the husband of the defacto complainant is died. Therefore, both are vicariously liable and the offence is made out as against the petitioner and another. Hence, he prays for dismissal of the quash petition.

6. Heard the learned counsel appearing for the petitioner; the learned Government Advocate (Crl.Side) appearing for the first and the learned counsel appearing for the second respondent.

7. On perusal of documents of the work contract agreement dated 11.02.2008, there is a specific Clause stating that if there is any untoward incident or accidents happened during the construction of work, the contractor is only liable for all the untoward incidents. Therefore, the petitioner is no way liable for anything happened during the construction. The Clause No.4 of the Work Contract Agreement is extracted below:

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8. Therefore, there is a specific Clause stated in the contract entered between the petitioner and the accused no.2. Hence, the petitioner is not vicariously liable for an unfortunate occurrence took place on 16.02.2008. The learned counsel for the petitioner has relied upon the Judgment of t