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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2023 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 3147 OF 2011 C/W MISCELLANEOUS FIRST APPEAL NO. 5919 OF 2011 IN MFA NO. 3147/2011 BETWEEN:
THE CHAIRMAN, NEW MANGALORE PORT TRUST, PANAMBUR, MANGALORE - 10.
…APPELLANT (BY SRI. RAYAPPA Y. HADAGALI, ADVOCATE)
AND:
Digitally signed by PAVITHRA B Location: HIGH 1. M/S. ENCEE RAIL LINKERS, COURT OF KARNATAKA ENGINEERS AND GOVERNMENT, APPROVED CONTRACTOR, OFFICE AT: D/1 NUTAN KALPANA BUILDING, GROUND FLOOR, S.M.ROAD, MULAND (WEST), MUMBAI - 400 080.
2. UNITED INDIA INSURANCE, CO.LTD., DOOR NO.7, CANADA BUILDING, 1ST FLOOR, 226, DR.D.N.ROAD, FORT MUMBAI - 400 001.
3. SMT. SHIVANI. R. RAI, W/O LATE. RATHAN KUMAR, AGED ABOUT 50 YEARS.
4. DIVYA RAI, D/O LATE. RATHAN KUMAR, AGED ABOUT 22 YEARS.
5. RISHITH RAI, S/O LATE. RATHAN KUMAR, AGED ABOUT 17 YEARS, MINOR REPRESENTED BY MOTHER AND NATURAL GUARDIAN, RESPONDENT NO.3.
RESPONDENTS 3 TO 5 ARE RESIDING AT NAGRIGUTHU HOUSE, SAJIPA MUDA VILLAGE, BANTWAL TALUK, D.K., 6. SMT. LALITHA RATHAN, W/O LATE. RATHAN KUMAR, RAO @ RATHAN KUMAR, AGED ABOUT 45 YEARS. 7. KUMARI DIVYA RAO, D/O LATE. RATHAN KUMAR, RAO @ RATHAN KUMAR, AGED ABOUT 24 YEARS.
RESPONDENTS 6 AND 7 ARE RESIDING AT SEETHA HOUSE, ACHADA POST, YANEGUDDE VILLAGE, KATPADY, UDUPI DISTRICT.
…RESPONDENTS (BY SRI. B. PRADEEP, ADVOCATE FOR R2;
NOTICE TO R3, R4 AND R7 ARE SERVED AND UNREPRESENTED;
V/O DATED 27/4/2018 SERVICE OF NOTICE TO R6 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED:14.01.2011 PASSED IN WCA/SR-21/2007(F) ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, D.K., SUB DIVISION-2, MANGALORE, AWARDING A COMPENSATION OF Rs.3,06,180/-
WITH INTEREST AND ETC., IN MFA NO. 5919/2011 BETWEEN:
M/S. ENCEE RAIL LINKERS, ENGINEERS AND GOVERNMENT, RECOGNIZED CONTRACTORS, OFFICE NO.D/1, NOOTHAN KALPANA, GROUND FLOOR, S.N.ROAD, MULUND (WEST), MUMBAI - 400 080.
REPRESENTED BY ITS PROPRIETOR, SRI. NARENDRA R. SHAH.
…APPELLANT (BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
1. SMT. SHIVANI R. RAI, W/O LATE. RATHAN KUMAR, AGED ABOUT 50 YEARS.
2. KUM. DIVYA RAI, D/O LATE. RATHAN KUMAR, AGED ABOUT 22 YEARS.
3. MR. RISHITH RAI, S/O LATE. RATHAN KUMAR, AGED ABOUT 17 YEARS, MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN, SMT. SHIVANI. R. RAI, (1ST RESPONDENT).
RESPONDENTS NO.1 TO 3 ARE RESIDING AT NAGRI GUTHU HOUSE, SAJIPA MOODA VILLAGE, BANTWAL TALUK, D.K.
4. SMT. LALITHA RATHAN, W/O LATE. RATHAN KUMAR RAO, AGED ABOUT 45 YEARS, ALIAS RATHAN KUMAR.
5. KUM. DIVYA RAO, D/O LATE. RATHAN KUMAR RAO, AGED ABOUT 24 YEARS, ALIAS RATHAN KUMAR.
RESPONDENTS NO.4 AND 5 ARE RESIDING AT 'SEETHA HOUSE', AACHAADA POST, YENEGUDDA VILLAGE, KATAPADI, UDUPI DISTRICT.
6. THE CHAIRMAN, N.M.P.T., PANAMBURU, MANGALORE - 575 010.
7. UNITED INDIA INSURANCE COMPANY LTD., DOOR NO.7, CANADA BUILDING, 1ST FLOOR, 226, DA:D.N.ROAD, FORT, MUMBAI - 400 001.
REPRESENTED BY ITS MANAGER.
…RESPONDENTS (BY SRI. G. RAVISHANKAR SHASTRI, ADVOCATE FOR R2;
SRI. RAYAPPA Y. HADAGALLI, ADVOCATE FOR R6; SRI. S. V. HEGDE MULKHAND, ADVOCATE FOR R7; NOTICE TO R1 IS SERVED AND UNREPRESENTED;
SERVICE OF NOTICE TO R4 AND R5 ARE HELD SUFFICIENT) THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED:14.01.2011 PASSED IN WCA/SR-21/2007(F) ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, D.K., SUB DIVISION-2, MANGALORE, AWARDING A COMPENSATION OF Rs.3,06,180/-
WITH INTEREST AND ETC., THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA 3147/2011 is filed by the Principal Employer, New Mangalore Port Trust, Panambur, Mangalore (hereinafter referred to as Principal-NMPT for brevity) and MFA No.5919/2011 is filed by the Contractor - M/s.Encee Rail Linkers Engineers and Government Approved Contractors (hereinafter referred to as Contractor-NCRL for brevity) challenging the impugned judgment and award referred to supra, passed by the Learned Commissioner, D.K. Sub-
Division, Mangalore.
2. Both the appeals are filed by the Principal Employer and Contractor being aggrieved by the payment of interest on lump-sum amount determined. Therefore, being aggrieved by the order to pay the interest, the appeals are filed by the Principal Employer and the Contractor.
3. Brief facts:
On 04.10.2005, the deceased Ratan Kumar, the employee of the Contractor met with an accident out of and in the course of employment near NMPT Godown and was shifted to A.J.Hospital at Mangalore and later on he died on
08.10.2005.
4. Heard arguments of the learned counsel for the parties and perused the materials on record.
5. The learned counsel for the Principal employer-
NMPT submitted that the appellant is not liable to pay interest but insurance company is liable to pay interest on the lump-sum amount determined or the contractor is liable to pay the entire compensation along with interest. Therefore, submitted the Principal-NMPT is not liable to pay any compensation along with interest for the reason that the hiring contractor is not relating to trade or business of the Principal employer-NMPT.
6. Further, it is contended by the learned counsel for Principal employer-NMPT that the deceased was the General Power of Attorney Holder (GPA Holder for brevity) of the contractor-NCRL and in the said GPA there is no mention that the deceased was a Project Supervisor/ workman. Therefore, submitted that the deceased was not a Supervisor/workman. Therefore, the Principal employer-
NMPT is not liable to pay the compensation.
7. The learned counsel for the Contractor-NCRL submitted that the Contractor is not liable to pay either the compensation or the interest thereon for the reason that the claimant has worked for and on behalf of Principal employer-NMPT. Further, submitted that the insurance company is liable to pay both lump-sum amount quantified and the accrued interest thereon, but not by the contractor.
8. Further, in support of his contention the learned counsel for the Contractor-NCRL places reliance on the judgment of the Hon'ble Apex Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. HARSHABHAI AMRUTHBHAI MODHIYA AND ANOTHER1 (hereinafter referred to as Harshabhai Amruthbhai's case for brevity) and in the case of UNITED INDIA INSURANCE CO. LTD. VS. SRI ALLABAX NAHNA SAB2 (hereinafter referred to as Allabax Nahna Sab's case for brevity)
9. In the present case, the facts are not disputed.
The Principal employer-NMPT had engaged Contractor-NCRL for execution of strengthening the railway track to the Principal–NMBT. Contractor-NCRL had taken the said contract work for doing work of strengthening railway track. In the said process, the accident took place on 04.10.2005. At the time of the accident, the deceased was working as Project Supervisor/workman and the deceased out of and in the course of the employment was coming to the place of work and met with an accident and died. Therefore, a claim petition is filed for seeking compensation under the Employees’ Compensation Act, 1923.
10. Exhibit-R10 is the GPA given by the Contractor-
NCRL to the deceased to transact and deal with Principal- NMPT for execution of work of correction of railway track. There may not be mentioning the designation of the deceased, but the deceased was engaged by the Contractor-NCRL. Therefore, when it is proved that the deceased was working at the instruction of the Contractor- NCRL for and on behalf of the Principal Employer-NMPT, it is proved that the deceased was workman as p
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