IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 MFA.No. 302 of 2009 --------------------- ( AGAINST THE ORDER DATED 053/05/2009 IN WC.95/2006 (OLD NO. W.C. 410 OF 1992 ) of W.C.C.,KOZHIKODE ) APPELLANT/ IST OPPOSITE .PARTY --------------------------- T.I.RAJU, CONTRACTOR, `ASHA BHAVAN', KOTTARAM ROAD, NADAKKAVU P.O., KOZHIKODE. BY ADV. SRI.PAULSON C.VARGHESE RESPONDENTS/ APPLICANT & 2ND OPPOSITE PARTY --------------------------------------------------------- 1. V.T.BALAN, S/O.KUNHIKANNAN, VADAKKE THAYYULLATHIL HOUSE, CHENOLI P.O., NOCHAD AMSOM DESOM, KOYILANDY, KOZHIKODE. 2. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, KOZHIKODE. THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ............................................................................... M.F.A.(WCC) No. 302 OF 2009 ......................................................................... Dated this the 23rd December, 2009 J U D G M E N T P.R. Raman, J: This appeal is filed at the instance of the immediate employer challenging the order passed by the Commissioner for Workmen's Compensation, ordering indemnification by the appellant of the amount directed to be paid by the principal employer in W.C No. 95 of 2006 (Old No. W.C. 410/92) 2. The first respondent herein sustained injuries in an accident while in employment. According to him he was employed by the appellant herein on 20.04.1992. While he was operating the concrete mixture machine, his three fingers of right hand were amputed. The work site was at 'Vishnumangalam Bund, Kallachi'. 3. After appreciating the evidence on record, the Workmen's Commissioner found that the applicant was a workman within the meaning of the Workmen's Compensation Act,1923 under the Principal employer, i.e., the second opposite party and an award amounting to Rs.95,306/- was passed directing the second opposite party to compensate the said M.F.A.(WCC) No. 302 OF 2009 2 amount awarded. There were two appeals preferred before this Court as M.F.A.No. 1058 of 1998 and 59 of 1998 respectively. Both the appeals were heard togeth4r and disposed of by common judgment. This Court had reduced the amount of compensation to Rs.53,000/- as against Rs.95,306/- awarded earlier. It was directed that the reduced amount will carry interest at the rate of 12% per annum. This Court remanded the case to decide the specific question as to whether the principal employer is entitled to get indemnified by the immediate employer. That judgment became final. The appellant was a party to the same. Therefore, in terms of the directions issued by this Court, the Commissioner for Workmen's Compensation is bound to decide the question regarding 'indemnification' strictly in accordance with law. 4. The written statement filed by the Principal employer was amended . Opportunity was afforded to the appellant to contest the matter and to adduce evidence. Thereafter, the present order was passed holding that the appellant being the immediate employer is liable to indemnify the principal employer in terms of the provisions under Section 12(2) of the Workmen's M.F.A.(WCC) No. 302 OF 2009 3 Compensation Act. This appeal is preferred by the immediate employer. 5. We heard the learned Counsel Shri Paulson C. Varghese appearing for the appellant. It is contended that the Commissioner for Workmen's Compensation ought not to have allowed the amendment sought for by the principal employer as it was prejudicial to the rights of the appellant herein. The finding of the Commissioner that the appellant is the immediate employer, is also disputed. 6. As regards the first contention, even without the amendment, the Commissioner is bound to consider the question since that was an issue specifically referred to the Commissioner to be decided. On the other hand, pursuant to the remand and in terms of the remand order, the plea was amended. Amendment of the plea was thus necessitated by the order of this Court and hence no prejudice as such is caused since opportunity was afforded to the appellant. Even otherwise as per Section 12(2) of the Workmen's Compensation Act, the principal employer is entitled to be indemnified by the immediate employer. It was the contention of the applicant that M.F.A.(WCC) No. 302 OF 2009 4 he was employed under the immediate employer/appellant herein. The applicant had made the said contention after the amendment of the plea. Hence the contention of the appellant that any legal prejudice would be caused, cannot be accepted. Coming to the contention about the relationship of the applicant with the appellant, it is purely a question of fact. It was after referring to the evidence on record that such a finding was entered into by the Workmen's Compensation Commissioner, which cannot be said to be in any way as perverse or prejudicial to the rights of the appellant. We have gone through the entire order and we do not find any merit in the contentions raised in this appeal. There is no substantial question of law for consideration by this Court. Appeal is dismissed. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk