Contracting & Commissioner - Employee's Compensation Act(1923), Industrial Laws | Industrial Laws - B Com PDF Download

Contracting

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 contract 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 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. 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 a pay compensation or to indemnify a principal under this section be 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. Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal. 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. 

Reference to Commissioners.

(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by ¹[a Commissioner].

(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.

COMMENTS

Liability of the employer

The liability of the employer arises as soon as the injury is caused and at any subsequent occasion. It cannot be suspended; State of Punjab v. Vidya Devi, (1990) II LLN 579 (P&H).

Liability of the insurance company

If the insurance company has agreed to discharge the liability of the employer under the Workmen’s Compensation Act, the liability of the insurance company to indemnify the insurer shall have to be determined by the Commissioner for Workmen’s Compensation in the very same proceedings by virtue of the provisions contained in section 19(1) of the Act; Razak Haji Jumma v. United India Insurance Co., 1995 (I) LLJ 168 (Bom).

Scope of expression “any person”

The insurer also will come within the scope of “any person” contemplated in section 19 of the Act and thus within the jurisdiction of the Workmen’s Compensation Commissioner; New India Assurance Co. Ltd. v. Joseph, 2000 (I) LLJ 1063 (Ker): (1999) 96 FJR 575.

Scope of sub-section (2)

The scope and scheme of sub-section (2) is not to take away from the civil court its jurisdiction to give relief in tort, but to provide alternate optional remedy for certain classes of persons in certain special circumstances and for certain happenings. There are two requirements, which need to be satisfied by the Commissioner to act under this Act— (1) the party must forego its right under the common law of the land, (2) the facts giving jurisdiction to the Commissioner must also exist side by side. When these two conditions are strictly fulfilled, the Act seeks to bar jurisdiction of the civil court on the aspects, namely, settling, deciding and dealing with any question involved in the proceeding; Gangnani & Co. v. Saraswati, 2001 (II) LLJ 1022 (Bom): 2001 (II) CLR 842.

Section 19 does not take away the jurisdiction of the civil court

Section 19 of the Act does not take away the jurisdiction of the civil court to grant relief in tort since section 5 indicates that the workman has an option to claim compensation either under the Workmen’s Compensation Act or can take recourse to the civil court for damages and the injuries sustained by him; Minerals & Chemicals v. Thevan, 1991 (II) LLN 951 (Ker).

1. Subs. by Act 15 of 1933, sec. 12, for “the Commissioner”.

Appointment of Commissioners..—

(1) The State Government may, by notification in the Official Gazette, appoint any person to be a Commissioner for Workmen’s Compensation for such ¹[***] area as may be specified in the notification.

²[(2) Where more than one Commissioner has been appointed for any ¹[***] area, the State Government may, by general or special order, regulate the distribution of business between them.]

³[(3)] Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the inquiry.

³[(4)] Every Commissioner shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
 

1. The word “local”omitted by Act 64 of 1962, sec. 7 (w.e.f. 1-2-1963).

2. Ins. by Act 15 of 1933, sec. 13.

3. Sub-sections (2) and (3) re-numbered as sub-sections (3) and (4) by Act 15 of 1933, sec. 13.