The liability of an worker engaged by a contractor rests with the main employer who had awarded the work or contract, ruled the high court
The Bombay High Court, in a significant ruling, has laid down a substantial point of law saying that the liability towards an employee engaged by a contractor or managing agent is on the main or principal employer.
Justice AH Joshi upheld the decision of Mumbai Commissioner for Workmen’s Compensation for awarding monetary relief to a worker, who died in an accident. The worker was not employed by the principal employer but by a contractor.
Justice Joshi was hearing an appeal filed by United Assurance Company, which challenged the award of compensation to a driver who was hired by MGM Motors to transport vehicles on behalf of Mahindra & Mahindra (M&M).
Admittedly, the victim was not employed by M&M, which owned the vehicles. The victim was rather employed by MGM Motors to whom the work/ contract for transport of vehicles was entrusted by the auto company.
The vehicles were required to be transported by a driver, Sureshkumar Parasnath Singh, engaged by MGM Motors on behalf of M&M. Thus, the HC held the liability towards an employee engaged by contractor or a managing agent is on the principal employer (in this case M&M).
The judge noted that this being an appeal under the Employees’ Compensation Act, the appellant has to substantiate the challenge on substantial questions of law.
He directed the appellant’s advocate KV Vitonde to pin point and address the court on substantial question of law whether a principal employer would be liable to pay compensation to a worker employed by a managing agency.
The HC, however, said it is not proved that due to any terms of contract between the two sides, the liability towards employees’ compensation was to be borne by MGM Motors.
Irrespective of the terms, the employee concerned is seen to be entitled to receive the compensation, the judge remarked and dismissed the appeal finding no merit in it.
While auto recalls are making headlines, the fact remains that it is only voluntary. Not only European, Japanese or American markets, even China has a vehicle recall policy in place along with a penalty provision and criminal proceedings, if required
Following the “voluntary code on vehicle recall” initiated by the Society of Indian Automobile Manufacturers (SIAM) last year in July, about 1.5 lakh cars and over 11,500 two-wheelers have been recalled by manufacturers. This is a welcome step, although domestic vehicle makers still have to catch up with the idea. The important question, however, is why not make this code as mandatory with a penalty provision on automakers that is adopted across the world?
"The voluntary code on vehicle recall will address potential issues that exist in a motor vehicle which do not meet the safety requirement due to manufacturing defect and the remedial actions taken in this regard. The vehicle shall be covered under safety recall for seven years," SIAM had said while announcing the code.
While the industry body has prepared the code for recall, in case a manufacturer fails to follow it despite clear evidence, SIAM expects the government, especially the ministry of road transport and highways to issue “appropriate directions” to the automaker for violation. Moreover, the Code is silent on the penalty provisions.
In September 2009, a committee set up to review the Motor Vehicles Act, 1988, recommended a fine of Rs1 lakh on an automaker for producing defective vehicles. The National Road Safety and Traffic Management Board Bill proposed a penalty of Rs10 lakh. But there is no progress on this front.
European, Japanese or American markets have vehicle recall policies in place along with a penalty provision and criminal proceedings, if required. Even China, the world’s largest auto market, has penalty provisions in case its 150 automakers fail to adhere to the vehicle recall policy.
Earlier this week, Renault, the French carmaker recalled 7,016 units of its Pulse and Scala vehicles for defect. Japanese automaker Nissan too decided to recall 22,188 units of its Micra and Sunny variants, produced between June 2012 and March 2013, owing to faulty braking system.
Interestingly, according to a report in The Economic Times, since the implementation of the recall code, it was the multi-national automakers, who have been complying with the code. Apart from Renault and Nissan, Honda has recalled 11,500 units of its CBR 250R bike due to defective brake system and Ford has recalled whopping 1.28-lakh units of its Figo and Classic variants due to steering and rear suspension issues. Toyota, on the other hand had recalled 10,800 units of its Corolla Altis, Corolla, Camry and Altis models due to faulty driveshaft, airbag malfunctioning and power windows switches, the report said.
It would be noteworthy to mention that last month four major Japanese automakers, Toyota, Honda, Nissan and Mazda had announced that they would recall 3.4 million vehicles sold across the globe due to airbag issue. All these airbags, made by Japan's Takata Corp were at the risk of catching fire or injuring passengers. All the four automakers would do the repairing free of cost. There is no mention of any penalty either on Takata or the four automakers, though.
Back home, last year while speaking with reporters, S Sandilya, president of SIAM had ruled out imposing penalty on carmakers for not following the code. He said, “The recall code has been framed with consensus of all members. Companies would adhere to it voluntarily to rectify defects in vehicles and secure their own brand image. The expenses they incur to replace faulty parts as a part of the recall exercise do not require any additional penalties to be put in place”.
The absence of a regulatory mechanism is what is hurting customers the most in India. For example, in the US, the National Highway Traffic Safety Administration (NHTSA) investigates complaints and issues mandatory notifications to automakers for recalling and fixing technical glitches in vehicles. The NHTSA can also impose penalty on automakers for failing to comply with its directions.
China too, levies a fine of Rmb10,000 to Rmb30,000 on automakers for selling defective vehicles besides obligatory product recall.
Accumulated losses as of 31 March 2013 stood at Rs16,023.46 crore and its networth on that date was a negative Rs12,919.81 crore
Kingfisher Airlines, grounded since 1st October last year, today reported net loss at Rs2,141.80 crore for the quarter ended March 2013 compared to a loss of Rs1,151.83 crore in the same period a year ago.
The carrier reported nil sales for the period under review as against sales of Rs782.83 crore in the fourth quarter of FY 2012.
For the entire 2012-13, the net loss is Rs4,001.12 crore against a loss of Rs2,328.01 crore in the previous year, Kingfisher Airlines said in a filing to the exchanges.
Accumulated losses as of 31 March 2013 stood at Rs16,023.46 crore and its networth on that date was a negative Rs12,919.81 crore.
Kingfisher had never made profit since it started operations in 2005.
The airline has been grounded since October and its air operations permit or the flying licence lapsed on 31st December last year, although it can be renewed within two years.
Last month, Kingfisher Airlines had submitted a fresh revival plan to DGCA, seeking permission to resume operations.
But it has not yet been accepted by the regulator on the ground that it did not have no-objection certificates from various stakeholders including airports, bankers, oil marketing firms, etc.
Of over Rs7,000 crore exposures to the 17 lenders, SBI has the maximum exposure of over Rs1,600 crore in the airline. It is followed by PNB (at Rs800 crore), IDBI (Rs800 crore), Bank of India (Rs650 crore) and Bank of Baroda (Rs550 crore).
However, of late, banks have started recovering dues from the carrier and have recovered around Rs1,000 crore as of now.
“KFA recoveries are going on. We have substantial amount of recoveries. Total recoveries for banks more than Rs800—Rs1,000 crore,” SBI chairman Pratip Chaudhuri had recently said.