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Civil Petition for Special Leave to Appeal No. 595 of 1972, decided on 2nd October 1973.

(On appeal from the judgment and order of the High Court, Lahore, dated the 29th September 1972, in F. A. O. No. 32 of 1971).

‑‑ S. 3‑Compensation‑Burden of proof‑Workman while engaged on repairs of premises meeting with fatal accident‑Claim for compensation‑Owner of premises denying liability on ground that worker was engaged by contractor entrusted with repairs work no evidence led to prove such contract‑Burden to prove contract, lay on owner‑Such burden not being discharged, owner held liable to pay compensation.

‑‑ S. 12‑Compensation‑Liability‑Workman employed by con tractor for execution of work whole or part of which ordinarily, formed part of trade or business of principal‑Workman meeting with accident fatal‑Principal, liable to pay compensation.

R. S. Sidhwa, Advocate Supreme Court instructed by M. Z. Khalil, Advocate‑on‑Record

for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd October 1973.

J.‑Muhammad Habib met an accident and died on 28th December 1969 while engaged as a labourer on the business premises of the petitioner. His widow Mst. Amanat, respondent thereupon applied to the Commissioner for grant of compensation as provided in the Workman's Compensation Act, 1923.

The claim was contested by the petitioner on the plea that the deceased was employed by one Farhat Masih to whom the petitioner had given contract for the construction work.

Farhat Masih had died earlier. He could not, therefore, be impleaded or examined in the proceedings, but it is significant that although the respondent maintained that her husband was employed by the petitioner as a workman and not by Farhat Masih, the petitioner did not place on the record either the agreement under which Farhat Masih was given the contract or the entries in its account books showing payments made to Farhat Masih for the alteration and repair work.

The onus was clearly on the petitioner to prove that Mohammad Habib who had died while engaged in doing work on their business premises was not employed by them and that he was an employee of Farhat Masih. While granting compensation the Commissioner erroneously observed that it was an admitted petition that Mohammad Habib, deceased, was employed by Farhat Masih and proceeded to determine the liability of the petitioner under section 12 of the Act.

Under section 12 the principal is liable to pay compensation to an workman employed by a contractor for the execution of the work the whole or any part of which is ordinarily part of the trade or business of the principal. With the help of a number of decided cases it was concluded by the Commissioner that repair of the business premises of the petitioner was ordinary part of their business or trade. In the result a sum of Rs. 6,000 was awarded as compensation to the respondent for the loss of the life of her husband.

On appeal by the petitioner the High Court has maintained the order of the Commissioner from which leave to appeal is sought.

As mentioned in the beginning of this order the view we have formed is that the onus to prove that Mohammad Habib, deceased, was not employed as a workman by the petitioner lay on the petitioner and since no evidence was led by them in support of the plea that he was employed by Farhat Masih, contractor, the petitioner was directly responsible to pay compensation to the respondent under section 3 of the Workmen's Compensation Act. In this view it is unnecessary to examine the scope of section 12 though well ,generally agree with the construction placed on it by the learned Judge in the High Court.

The petition is dismissed.

Petition dismissed.

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