IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 MFA.No. 65 of 2006() -------------------- WCC.71/1998 of W.C.C.(DEPUTY LABOUR COMMISSIONER),KOLLAM .................... APPELLANT/1ST OPPOSITE PARTY: ------------------------------ KERALA WATER AUTHORITY, KOLLAM, REP. BY THE EXECUTIVE ENGINEER. BY ADV. SRI.M.DINESH, SC, KWA RESPONDENTS/APPLICANTS AND 2ND OPPOSITE PARTY: ----------------------------------------------- 1. SUNDARESWARAN, PANAKKATHRA VADAKKETHIL, PANMANA P.O., KOLLAM. 2. THILAKAMMA, W/O. SUNDARESWARAN -DO-. 3. SUNITH, S/O. SUNDARESWARAN -DO- -DO-. 4. SURESH, S/O. SUNDARESWARAN -DO- -DO-. 5. MANIKANDON, PLUMBING CONTRACTOR, CHOKKANTHARA VEEDU, PANMANA P.O., CHAVARA, KOLLAM. R1 BY ADV. SRI.B.MOHANLAL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.(W.C.Act)No.65 OF 2006 ------------------------------------- Dated 1st April, 2008 JUDGMENT Koshy,J . One Suni @ Ganapathy, a plumber, while engaged in plumbing repair work on 29.7.1997 on behalf of the appellant, Kerala Water Authority, drowned in the water tank owned by it and died. Legal representatives of the said Suni filed an application for compensation contending that the deceased was employed by the fifth respondent plumbing contractor of Kerala Water Authority, the appellant in this case. It is not disputed that the accident occurred during the repair work of the tank. The contention raised in the appeal memorandum is that fifth respondent is a Government contractor (as can be seen from ground `C') and he engaged the deceased to do the repair works and since there is no employer-employee relationship with Water Authority, no compensation need be paid by the appellant. But, the facts that fifth respondent was the contractor engaged by the appellant for repair of the water tank and accident occurred during the above work etc. are not denied. Under Section 12(1) of the Workmen's Compensation Act MFA.65/2006 2 principal employer is liability to pay compensation. It is for the appellant to file application before the Commissioner if appellant is entitled to reimbursement of the amount paid from 5th respondent under Section 12(2). It is true that the appellant was declared ex- parte, but, Commissioner has considered and passed the award on merit. Even if the contention of the appellant is accepted, the accident occurred while doing repair works of the tank owned by the appellant and, therefore, the appellant being principal employer is liable. Dependents of the deceased are entitled to compensation from the principal employer. It is contended that Rs.2,000/= fixed as monthly income is on the higher side. Deceased was a plumber by profession. It is true that he was not employed regularly by the appellant. In such cases, calculation of wages has to be made as provided under section 5 of the Workmen's Compensation Act. Section 5(b) provides that if the workman was in service for less than one month, the monthly wages of the workman shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a workman employed on the same work by the same employer, or if, there was no workman so MFA.65/2006 3 employed, by a workman employed on similar work in the same locality. It cannot be stated that a plumber will not get Rs.2,000/= per month in the year 1997. Interest was awarded following Section 4A of the Act and compensation was calculated strictly as per the provisions of the Act. Therefore, there is no merit in the appeal. The appeal is dismissed. J.B.KOSHY JUDGE K.HEMA JUDGE tks