DTC v. Veda Rani

1. This first appeal is filed under Section 30 of the Employees Compensation Act, 1923 (in short ‘the Act’) impugning the judgment of the Commissioner dated 27.8.2008 by which the claim petition filed by the dependants of the deceased driver Rajbir Singh was allowed.

2. It was not disputed before the Commissioner and is also not disputed before this Court that the deceased driver Rajbir Singh was working with the appellant and his services were placed with the appellant by the agency namely M/s Neelkanth Placement Service. It is also not disputed 2014:DHC:2428 that the death of Sh. Rajbir Singh took place on account of an accident while he was on duty on 6.10.2004 and ultimately he died on 24.10.2004.

3. Section 12 of the Act provides that in case a person is working not with his parent employer but at the site or place of work of another person, such other person is called principal and such principal is additionally liable alongwith the parent employer by virtue of Section 12. Section 12 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 this 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 *[employee] employed in the execution of the work any compensation which he would have been liable to pay if that *[employee] 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 *[employee] 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 *[employee] 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 *[employee] 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. (3) Nothing in this section shall be construed as preventing a *[employee] from recovering compensation from the contractor instead of the principal. (4) This section shall not apply in any case where the accident occurred elsewhere that on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.”

4. Therefore, though the deceased driver was formally employed by M/s Neelkanth Placement service but since he was working actually with the appellant/DTC, Section 12 of the Act comes into play, making the appellant liable to make payment of the amount in case of an accident arising out of and in the course of employment and which aspect is not disputed.

5. Counsel for the appellant has argued that appellant will not be liable to pay interest at 12% p.a. simple w.e.f 24.10.2004 till the date of payment. This argument urged on behalf of the appellant is again without substance because Section 4 A(3) specifically provides this rate of interest. Supreme Court in the judgment of a Division Bench of four judges in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and Anr. 1976 (1) SCC 289 has held that liability to pay interest arises 30 days after the date of the accident and not after adjudication. This aspect has been clarified by the Supreme Court in the recent judgment in the case of The Oriental Insurance Company Ltd. Vs. Siby George & Ors. (2012) 12 SCC 540 and which judgment has held an earlier judgment in the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and Anr. (2007) 2 SCC 349 holding that interest is payable 30 days after ajudication is a per incuriam judgment in view of the earlier judgment of a larger Bench of four judges in the case of Pratap Narain Singh (supra)

6. In view of the above, there is no merit in the appeal and the same is therefore dismissed, leaving the parties to bear their own costs. MAY 07, 2014 VALMIKI J. MEHTA, J. ib