IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 MFA.No. 225 of 2009() --------------------- WCC.160/2002 of C.W.C., KANNUR .................... APPELLANT/ 1ST OPPOSITE PARTY: --------------------------------- N.C.GEORGE, NEDUMALAKUNNEL, NELLIKKAMPOIL, P.O.ULIKKAL, KANNUR. BY ADV. SRI.VIJU ABRAHAM SRI.JOY C. PAUL SRI.ALBERT V.JOHN RESPONDENTS/ APPLICANT & 2ND OPPOSITE PARTY: ---------------------------------------------- 1. JAYARAJ.T.JOSEPH, S/O.JOSEPH, PANDIRUVELIL HOUSE, KAPPUKKAD, P.O.VAZHOOR, KOTTAYAM DISTRICT. 2. P.D.CHACKO, PUTHIYADATH THAZHATH, P.O.ULIKKAL, KANNUR. ADV. SRI.SURIN GEORGE IPE FOR R1 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. --------------------------- M.F.A.No.225 OF 2009 --------------------------- Dated this the 8th day of March, 2010 J U D G M E N T ~~~~~~~~~~~ Basheer, J. This appeal is directed against the order passed by the Commissioner for Workmen's Compensation in a claim petition filed by respondent No.1 here. The Commissioner found that respondent No.1 was entitled to get a sum of Rs.3,18,773/- as compensation for the injuries sustained by him in the accident while he was working under the appellant. 2. The appellant contended that in his capacity as a Contractor he had undertaken the construction of a building for respondent No.2. He had only mobilised some workers including the applicant and carried out certain items of work in terms of Ext.R1 agreement executed between him and respondent No.2. M.F.A.No.225/2009 2 3. However, the contention of respondent No.2 was that it was the sole responsibility of the appellant to carry out the construction of the building and that he had no control over any of the workers engaged by the appellant. Therefore, the appellant was solely responsible to compensate the workmen if any mishap occurred. 4. Though notice has been served on respondent No.2, the building owner, he has not entered appearance either in person or through counsel. We have heard learned counsel for the appellant and respondent No.1. Both sides had adduced oral and documentary evidence before the Commissioner. The Commissioner, after evaluating the evidence available on record, took the view that the appellant had been put in charge of the construction of the building by respondent No.2 pursuant to Ext.R1 agreement. 5. It is not in dispute that in the accident at the worksite, the applicant lost his right arm above the elbow apart from sustaining certain other injuries. However, before fastening the M.F.A.No.225/2009 3 liability to pay compensation on the appellant, the Commissioner did not advert to or deal with the crucial question of the liability of the owner of the building, who is the principal employer in its proper perspective. The curious reasoning of the Commissioner to exonerate respondent No.2 reads thus: “Since the Opposite party II, the building owner is a retired teacher and his source of income for livelihood is from the service pension and construction of this particular building cannot be considered as his trade or business. So Opposite party II is not liable for compensation. Opposite party I, the contractor who directly employed the Applicant for construction work is his employer. The Opposite party I is liable to pay compensation.” 6. We are afraid the above line of reasoning is totally faulty. In our view the entire matter has to be reconsidered by the Commissioner afresh in the light of the evidence available on record and also keeping in view the settled portion of law. . We make it clear that it will be open to the parties to adduce further evidence, if they choose to do so. The Commissioner shall afford sufficient opportunity to the parties, if such a request is made. 7. The parties shall appear before the Commissioner on 5th April, 2010. M.F.A.No.225/2009 4 8. The Commissioner shall ensure that the case is disposed of, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. 9. The amount which is already disbursed to respondent No.1 shall not be recovered from him. The above payment shall be subject to the final result of the case. It will be open to the applicant to make a request before the Commissioner for release of the balance amount. If such a request is made, appropriate orders shall be passed in accordance with law. (A.K.BASHEER, JUDGE) (P.Q.BARKATH ALI, JUDGE) ps