This appeal emanates from the decision dated 14th September, 1981 passed by the learned Commission for Workmen's Compensation, Sahiwal, whereby the appellant was directed to pay Rs.
3,800 as compensation to respondent No. I for injury to his fingers resulting from an accident which took place while he was performing his duties.
2. The facts are that the appellant is the owner of an ice factory which was leased out to respondents Nos. 2 and 3 for the season of 1980 for Rs. 20,000 vide lease deed Exh. R-1. One of the conditions of the lease was that the lessor will not be responsible for any accident and that the lessee would be responsible to abide by the laws of the Government. Respondents Nos. 2 and 3 employed workers including respondent No. 1. While respondent No. I was working, his hand was entangled in the belt resulting in; injuries to his two fingers. He brought an application for compensation before the learned Commissioner for Workmen's Compensa--tion. The predecessor of- the learned Commission who could not decide the case had ordered the deletion of the names of the appellant. The learned Commission again impleaded the appellant as party and has held him liable for the compensation. According to the evidence on the .Record, the number of workers employed by respondents Nos. 2 and 3 was less than ten. The Mills had caught fire in 1979 and whole machinery was burnt with the result that all workers which were more than twenty in number were terminated.
3. The questions to be examined are if the Workmen's Compensation Act applies and if so, whether the contract of lease was' that kind of contract which is contemplated by section 12 of the Workmen's Compensa--tion Act (hereinafter to be called as "The Act"). The business of Okara Flour Mills appears to be grinding of flour. The Mills owned one ice factory also. The ice factory, therefore, could be a separate factory owned by the owners of the Flour Mills. The employees of one establishment could not be employees of another factory. There is no evidence how many employees were in the ice factory when it was run by the appellant mills itself. The evidence as mentioned above shows that the lessors had employed only a few workers whose number was less than ten. In the absence of evidence, it can only be said that the appellant must be having only that number of workers to work the ice factory which was employed by the lessors. The number of workers being less than ten, Workmen's Compensation Act would not apply. The learned Commission has wrongly included the number of workers of another factory i.e. The Flour Mills. The simple reason that the owner was the same was not sufficient. The business and nature of work to be done in the two factories was quite different. If same kind of work is split up into parts, of course the tote: number of workers in all the parts may be considered, but in the present case as mentioned above, they were different factories in which quite different articles were prepared. In the flour mills which was not a seasonal factory flour was prepared whereas in the ice factory which was a seasonal factory, ice was prepared. I, therefore, hold that respondent No. 1 was not covered by the definition of worker as given in section 2 (n) and thus Workmen's Compensation Act is not applicable to the ice factory.
4. The contract of lease is quite different from the contract contemplated by section 12 (1). The section is reproduced below for ready reference :- "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 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 amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed."
There was no contract to get ice prepared for the appellant. Respondents Nos. 2 and 3 had not to do any work for. The appellant but for themselv4,5. The ice prepared by respondents Nos. 2 and 3 was not to be delivered to the appellant. Again respondents Nos. 2 and 3 had not to recover any remuneration from the appellant for any work done for them. Rather they were bound to pay lease money to the appellant under the agreement of lease. The machinery was leased out and the lease money was for the use of his ice plant. The appellant was not responsible for any loss or profit. They were concerned only with the lease money under the lease. It, there--fore, cannot be said that the contract was for the execution of any work by or under any contractor which may be ordinarily a part of the trade of =--business of the principal. Even according to the lease agreement, respondent No. 1 could not claim compensation from the appellant and respondents Nos. 2 and 3 only were liable, if at all, Workmen's Compensation Act is said to be applicable.
5. As upshot of the observations made above, I accept the appeal :and setting aside the impugned decision of the learned Commissioner, dismiss. The petition of respondent No. 1.