IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 MFA.(WCC).No. 155 of 2007(A) ---------------------- WCC.16/2002 of W.C.C., KANNUR .................... APPELLANT: OPPOSITE PARTY NO.2 ------------------------------ M/S.UNIVERSAL ENGINEERING COMPANY, MANNA, VALAPATTANAM, REPRESENTED BY ITS MANAGING PARTNER K.BHARATHAN. BY ADV. SRI.P.V.SURENDRANATH SRI.P.V.DIBU RESPONDENTS: APPLICANTS & OPPOSITE PARTY NO.1 --------------------------------------------- 1. K.K.KANAKAN, W/O.LATE C.K.JAYAN, APARI HOUSE, P.O.ALAVIL, KANNUR. 2. JISHA, D/O.JAYAN, APARI HOUSE, P.O.ALAVIL, KANNUR. 3. SHYJU, S/O.JAYAN, APARI HOUSE, P.O.ALAVIL, KANNUR. 4. E.K.PRABHAKARAN, SAI PRABHA, NEAR KADALAYI TEMPLE, P.O.CHIRAKKAL, KANNUR. BY ADV. SRI.P.RAMAKRISHNAN SRI.N.NAGARESH SRI.BINU PAUL THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ALONG WITH MFA.192/07 ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.155 of 2007 & M.F.A.No.192 of 2007 ----------------------------------------- Dated this the 4th day of March, 2008 JUDGMENT Koshy, J. One C.K.Jayan died while effecting repair work of a house at Chirakkal near Kadalayi Temple. His wife and two children approached the Commissioner for Workmen's Compensation for compensation contending that he was employed by the first opposite party for repair of his house and fell down during the course of employment and he died due to the injury sustained by him. In the written statement filed by the first opposite party it was stated that the deceased C.K.Jayan was employed by the second opposite party, M/s.Universal Engineering Company. The fact that C.K.Jayan, while doing the work of repairing the house of first opposite party, fell down and died is not disputed. The Commissioner found that the accident occurred while he was employed by the second opposite party for repairing the house of first opposite party and both first and second opposite parties are jointly and severally liable to pay compensation. The above findings are challenged by the first and second opposite parties in these appeals. MFA.155 & 192/07 2 2. Contention of the first opposite party is that during evidence, it was disclosed by PW1 that he was engaged by the second opposite party for last 25 years for various works and during their work the incident occurred. But during the cross-examination by the second opposite party, she stated that she was not aware where the deceased was engaged and there was no documentary evidence to show regarding his employment. In other words, she has no direct knowledge about the same. But she stated that she sent notice to the first opposite party because she was under the impression that first opposite party was the proprietor of the second opposite party Company. It is further contended that the Commissioner found that the deceased was employed by the contractor second opposite party and therefore, even though he was directed to deposit the amount as a private employer, he is entitled to get reimbursement under Section 12(2) of the Workmen's Compensation Act. The contention of the second opposite party was that they never employed C.K.Jayan. On their enquiry it is understood that even though he was usually a drunken man, he was an expert in maintenance work and he was used to be called by various persons for repairing work and the first opposite party called MFA.155 & 192/07 3 him for the work and the incident occurred and they have nothing to do with the death of C.K.Jayan. But for valid reason, the registers produced by the second opposite party Company to show the names were rejected by the Commissioner as even the names mentioned by him during his deposition were not seen in the register. The exact nature of business done by the second opposite party is not in evidence. But the Commissioner found that the deceased was called at the instance of the second opposite party and second opposite party used to engage him. But the accident occurred while repairing the house of first opposite party. It may true that he was employed by the contractor. The Commissioner's finding was that the deceased was engaged at the instance of the second opposite party and the accident occurred during the repairing work of house of first opposite party. But there is no formal contract between the first and second opposite parties. Under these facts and circumstances of the case, both parties are jointly and severally liable to pay compensation. Both parties deposited 50% of the compensation amount to satisfy the award. On going through the evidence, we are of opinion that second opposite party was overlooking the work of repairing work of the house of first opposite party and during the MFA.155 & 192/07 4 course of employment workman died and both of them are liable to pay compensation. We see no reason to interfere with the findings of the Commissioner and hence we dismiss both the appeals. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs.