Judgment:
$~ * % 24 + 25 + 1. IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
10. h August, 2017 FAO5902016 MOHMAD RABANI ..... Appellant Through: Ms. Jyotsana Gupta, Advocate versus PEER KHAN & ORS ........ RESPONDENTS
Through: Mr. Kamaldeep, Advocate FAO5972016 and C.M. Appl. 47192/2016 AMAR JYOTI Through: Ms. Jyotsana Gupta, Advocate ..... Appellant versus PEER KHAN AND ORS Through: Mr. Kamaldeep, Advocate ........ RESPONDENTS
CORAM: HON'BLE MR. JUSTICE J.R. MIDHA JUDGMENT (ORAL) The appellants have challenged the order dated 17th October, 2016, whereby compensation of Rs.6,12,360/- has been awarded to respondent No.1.
2. The appellant in FAO5972016 is the owner of property bearing No.A-1/290, Janakpuri, New Delhi built over land measuring 419 square FAO5902016 & 597/2016 Page 1 of 6 yards. On 16th June, 2012, Haseena was working as a labour and was digging the mud in the basement when the mud wall collapsed and she was buried under it. The police registered FIR No.138/2012 under Sections 288/304A IPC with P.S. Janakpuri against Mohd. Rabani (Appellant in FAO5902016).
3. Haseena was survived by her husband and sons who filed the application for compensation before the Commissioner, Employees’ Compensation claiming that the deceased was employed by the contractor, Mohd. Rabani in respect of property bearing No.A-1/290, Janakpuri, New Delhi owned by Amar Jyoti (Appellant in FAO5972016).
4. The Commissioner, Employees’ Compensation held that there was a valid employer-employee relationship between the deceased and Mohd. Rabani who paid Rs.1,50,000/- to the family of the deceased as interim compensation. The Commissioner, Employees’ Compensation held that the accident took place during the course of employment of the deceased. The Commissioner, Employees’ Compensation awarded the compensation of Rs.6,12,360/-. The Commissioner, Employees’ Compensation gave adjustment of Rs.1,50,000/- paid by the contractor and held the contractor as well as the owner of the building liable to pay the compensation of Rs.4,62,360/- along with interest @ 12% per annum and funeral expenses of Rs.5,000/-.
5. Learned counsel for the appellants urged at the time of hearing that the owner of the building had given the contract to M/s R.P. Realbuild Pvt. Ltd. who alone is responsible to pay the compensation. Reliance is placed on the construction agreement dated 17th March, 2012.
6. The record of the Commissioner, Employees’ Compensation has been FAO5902016 & 597/2016 Page 2 of 6 perused. Neither the Contractor nor the owner of the building raised the plea with respect to the liability of M/s R.P. Realbuild Pvt. Ltd. in their written statement nor any evidence was led in respect thereof. In that view of the matter, there is no infirmity in the finding of Commissioner, Employees’ Compensation holding the owner and contractor liable to pay the compensation.
7. Learned counsel for the appellants submits that the copy of the construction agreement was placed on record before the Commissioner, Employees’ Compensation at the stage of final arguments. Since the same was beyond the pleadings and evidence led, the Commissioner, Employees’ Compensation has rightly not taken note of the same.
8. Mohd. Rabani was a contractor under Amar Jyoti at the time of the accident and therefore, by virtue of Section 12 of the Employees’ Compensation Act, Amar Jyoti, being the principal, is liable to deposit the compensation amount along with interest with a right to recover the same from the contractor.
9. Mr. Amar Jyoti, owner of the building, is present in Court. On the query of this Court, he submits that the property bearing No.A-1/290, Janakpuri, New Delhi is built over land measuring 419 square yards and more than 10 workers were employed during the period of construction and approximately Rs.24 lakh was spent towards cost of construction (Rs.12 lakh towards cost of material and about Rs.12 lakh towards the labour cost). As such, the total cost of the building is more than Rs.10 lakh. Since the cost of the building is more than Rs.10 lakh and more than 10 workers were employed in the construction work, the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 is FAO5902016 & 597/2016 Page 3 of 6 applicable to the present case. Section 45 of the said Act imposes a clear liability on the owner of the building to pay the compensation amount with a right to recover the same from the contractor.
10. The compensation of Rs.6,12,360/- awarded by the Commmissioner, Employees’ Compensation to respondent No.1 is upheld. However, the impugned order is modified to the extent that the owner, Amar Jyoti is held liable to pay the entire compensation as determined by the Commissioner to the Claimants and is granted recovery rights to recover the same from the contractor, Mohd. Rabani. Both the appeals are disposed of. Pending application is disposed of.
11. Peer Khan@ Pir Khan is present in Court along with passbook of his savings bank account No.428302010004287 with Union Bank of India, Bansa Branch, District Damoh, Madhya Pradesh (IFSC: UBIN0542831) 12. The appellant in FAO5902016 has deposited Rs.3,45,000/- with the Registrar General of this Court on 17th May, 2017 whereas the appellant in FAO5972016 has deposited Rs.3,42,146/- with the Commissioner, Employees’ Compensation on 27th January, 2017.
13. The Registrar General of this Court is directed to release the amount of Rs.3,45,000/- deposited by the appellant in FAO5902016 along with interest accrued thereon to Peer Khan@ Pir Khan (respondent No.1) by instructing UCO Bank, Delhi High Court Branch to disburse the amount in the following manner: - (i) UCO Bank shall keep Rs.3 lakh in 60 FDRs of Rs.5,000/- each in the name of Peer Khan @ Pir Khan for the period 1 month to 60 months respectively with cumulative interest; and (ii) The balance amount, after keeping Rs.3 lakh in FDRs, be released to FAO5902016 & 597/2016 Page 4 of 6 Peer Khan @ Pir Khan by transferring the same to his aforesaid savings bank account with Union Bank of India.
14. With respect to the amount deposited by the appellant in FAO5972016, the Commissioner, Employees’ Compensation, New Delhi District is directed to transfer the said amount to UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Peer Khan @ Pir Khan within a period of four weeks from today. Upon receipt of the said amount, UCO Bank shall disburse the same in the following manner: - (i) UCO Bank shall keep Rs.3 lakh in 60 FDRs of Rs.5,000/- each in the name of Peer Khan@ Pir Khan for the period 61 month to 120 months respectively with cumulative interest; and (ii) The balance amount, after keeping Rs.3 lakh in FDRs, be released to Peer Khan @ Pir Khan (respondent No.1), by transferring the same to his aforesaid savings bank account with Union Bank of India.
15. At the time of maturity, the maturity amount shall be automatically credited in the aforesaid savings bank accounts of Peer Khan @ Pir Khan.
16. All the original FDRs shall be retained by UCO Bank, Delhi High Court Branch. However, the statement containing FDR number, FDR amount, date of maturity and the maturity amount be furnished to Peer Khan @ Pir Khan.
17. No cheque book or debit card be issued to the claimants/respondents without permission of this Court. In case the cheque book/debit card has already been issued, the same shall be cancelled forthwith by Union Bank of India, Bansa Branch, District Damoh, Madhya Pradesh. FAO5902016 & 597/2016 Page 5 of 6 18. No loan or advance or pre-mature discharge shall be permitted without the permission of this Court.
19. Peer Khan @ Pir Khan is at liberty to approach this Court for pre- mature discharge of the FDRs amount in case of any financial exigency.
20. List for reporting compliance on 09th October, 2017.
21. Copy of this judgment be given dasti to counsels for the parties under signatures of the Court Master.
22. Copy of this judgment be given dasti under signatures of the Court Master to Mr. Sanjoy Ghose, learned Additional Standing Counsel for Government of NCT of Delhi for compliance by the Commissioner, Employees’ Compensation.
23. Copy of this judgment be sent to Union Bank of India, Bansa Branch, District Damoh, Madhya Pradesh and UCO Bank, Delhi High Court Branch for compliance. AUGUST10 2017 rsk J.R. MIDHA, J.
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