IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 MFA.No. 1049 of 1997()& CROSS OBJECTION ---------------------- WCC.150/1993 of COMMISSIONER FOR WORKMEN'S COMPENSATION AND DEPUTY LABOUR COMMISSIONER, KANNUR .................... APPELLANT: ----------- THE DEPUTY MANAGER, L.P.G.FILLING PLANT, BHARAT PETROLEUM CORPORATION LIMITED, KAZHAKKUTTAM P.O. P.B.NO.6, THIRUVANANTHAPURAM. BY ADV. SRI.A.M.SHAFFIQUE (SR.) RESPONDENTS: ------------ 1. A.T.IBRAHIM,(DIED) S/O.MAMMED, HEADLOAD WORKER, RESIDING AT ARUMMAL THOTTANTAVIDA, P.O.CHIRAKKAL, KANNUR DISTRICT . 2. DASAN, PROPRIETOR, ANIL GAS AGENCIES, PUTHIYATHERU, P.O., CHIRAKKAL, CANNANORE DISTRICT. 3. THE MANAGER, P.C.VARGHESE & CO. TRANSPORTING CONTROLLER, L.P.G.FILLING UNIT, KAZHAKKUTTAM P.O, P.B.NO.6., THIRUVANANTHAPURAM. 4. THE MANAGER, ORIENTAL INSURANCE CO.LTD., KANNUR. *5. R.JAYANANTHAN, S/O.RAMAKRISHNAN HOUSE NO.VII B/204, NADICHAVILAKATTU VEEDU, ATTINKUZHI, KAZHAKUTTAM P.O., THIRUVANANTHAPURAM. (*) RESPONDENT NO.5 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 24/10/1997 IN C.M.P.NO.4408/1997 (**)ADDITIONAL RESPONDENT NOS.7 TO 12 IMPLEADED R7 A.T.MARIYAM, KAMBIL , KOLACHERY P.O., KANNUR. R8 ASYA, W/O.LATE A.T.IBRAHIM, KAMBIL , KOLACHERY P.O., KANNUR. R9 SUMMAYYA, KAMBIL , KOLACHERY P.O., KANNUR. R10 NASSEEMA, KAMBIL , KOLACHERY P.O., KANNUR. R11 FOUSIYA, KAMBIL , KOLACHERY P.O., KANNUR. R12 RIYAS, KAMBIL , KOLACHERY P.O., KANNUR. (**) ADDITIONAL RESPONDENT NOS.7 TO 12 IMPLEADED AS PER ORDER DATED 19/06/2002 IN C.MP NO.3552/2002. BY ADV. SRI.A.MOHAMED MUSTAQUE FOR R7 TO R12 SRI.T.L.ANANTHASIVAN FOR R3 SMT.P.B.ANANDHY SRI.M.JACOB MURICKAN SRI.MOHAN IDICULLA ABRAHAM SRI.G.D.PANICKER FOR R2 SMT.JEENA JOSEPH FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NOS. 4408/1997, 4650/1999 & 7614/2000 IN C.R.P.No.1435/2003 DISMISSED. SD/-P.R.RAMAN, JUDGE SD/- T.R.RAMACHANDRAN NAIR, JUDGE 06/08/2008. \\TRUE COPY// P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ M.F.A.No.1049 of 1997 and Cross Objection ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 6th day of August, 2008 J U D G M E N T J U D G M E N T RAMAN, J. This is an appeal arising under the Workmen's Compensation Act. 2. The first respondent herein, who died during the pendency of the appeal, had filed an application before the Commissioner for Workmen's Compensation alleging that he sustained employment injuries while in service of the appellant and claimed compensation against the appellant as well as against the second respondent herein. The specific case put forth by him was that he met with an accident on 03/01/1993 and sustained injuries while he was under the employment of opposite party Nos.1 and 2, who are the appellant and second respondent respectively in this appeal. He was a head load worker under them. He was also having a head load registration card. While he was unloading gas cylinders sent by the appellant to the second respondent's sales depot at Puthiyatheru, along with other workers, the lorry driver moved the vehicle without any signal and a gas cylinder fell on the left foot of the applicant causing grievous M.F.A..NO.1049/1997 -:2:- injuries to his left foot. According to him, three toes had to be removed along with seven metatarsal bones. According to him the second respondent herein is an agent under the appellant herein. 3. The appellant contended that the claimant was not employed by them and that the appellant's relationship with the second respondent is a principal to principal basis and not as an agent or an immediate employer. On the other hand, the second respondent contended that if at all there is a liability to pay any compensation, it is payable only by the appellant. Based on the evidence adduced by the parties, the court below found that the accident occurred while in service and also quantified the amount. The court below directed the appellant to deposit the amount as a principal employer with right, if any, to recover the said amount from the second respondent herein as per Section 12 of the Workmen's Compensation Act. Aggrieved thereby, the appellant has filed this appeal. The second respondent has filed a cross appeal, the maintainability of which is seriously disputed. Since this is a statutory appeal filed by the appellant herein, the question for consideration was as to whether without making any pre-deposit, a cross appeal could be filed. However, it was contended by the second respondent that as a party respondent in this appeal and since the procedure to be adopted by this Court is as contained in Order XLI Rule 33 of the Code of Civil Procedure and placing reliance on the decision in M.F.A..NO.1049/1997 -:3:- Vijayaraghavan v.Velu and another [1973 KLT 333] it is contended that he is entitled to take up such a contention as though as an appeal has been preferred. 4. During the pendency of the appeal, the first respondent died and his legal representatives were brought on record. We find that, only discharge summary was produced by the claimant before the Commissioner for the Workmen's Compensation, but the Commissioner assessed the compensation based on his personal satisfaction. 5. At this distance of time and in view of the fact that the claimant himself died during the pendency of the appeal and in the larger interest of justice, we thought that it will not be feasible to remit the matter back for such purpose of re-quantification of the amount or to adduce better evidence with regard thereto. The appellant as well as the second respondent seriously contested the matter, inter alia, reiterating the contentions already noticed above and disclaiming the liability to pay compensation to the claimant. In the factual situation, leaving open all such contentions to be agitated in appropriate case, we suggested a compromise between the parties, to which the counsel appearing on either sides and also the claimant's counsel fairly agreed to. Without going into the merits of the contentions raised between the parties and this being a case of an accident sustained by the claimant who died during the pendency of M.F.A..NO.1049/1997 -:4:- this appeal, on compassionate ground, both of them are prepared to share the liability. Accordingly, we suggested to the appellant and the second respondent to pay the amount of compensation as awarded by the Workmen's Commissioner in equal proportion. A cheque, drawn in favour of the widow of the claimant, who is the eighth respondent herein, for an amount of Rs.29,000/-, was handed over to the counsel appearing for additional respondents 7 to 12. Since the entire amount as a pre-condition for filing the appeal has been deposited by the appellant, we permit the eighth respondent to withdraw 50% of the amount already in deposit. The entire balance amount in deposit is permitted to be withdrawn by the appellant. This judgment will not form any precedence. M.F.A is disposed of as above. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms