IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 MFA.No. 103 of 2010() --------------------- WCC.48/2004 of W.C.C.,ERNAKULAM .................... APPELLANT/2ND OPPOSITE PARTY -------------------------------- VAZHAKKULAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MARAMPILLY.P.O. ALUVA. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.K.K.RAJEEV RESPONDENT/APPLICANTS & OPPOSITE PARTIES 1 & 3 -------------------------------------------------- 1. USHA, W/O. SIVADASAN, PERUMUTTATH HOUSE KUNNUVAZHI KARA, MARAMPILLY, ALUVA. 2. DEEPA, D/O. SIVADASAN, DO-DO- 3. DIVYA, D/O. SIVADASAN, DO-DO- 4. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM PATTOM THIRUVANANTHAPURAM. 5. HAMEED S/O. ALI, JUNDALA HOUSE, MARAMPILLY, ALUVA. ADV. SRI.GOPAKUMAR G. (ALUVA) FOR R5 SMT.ANUPAMA JOHNY FOR R5 SRI.K.RAMACHANDRAN FOR R1-3 SRI.S.SREEDEV FOR R1-3 SRI. ASOK M.CHERIYAN, SC, KSEB FOR R4 SRI.PULIKOOL ABUBACKER, SC, KSEB FOR R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * * M.F.A.No.103 of 2010 ---------------------------------------- Dated this the 8th day of November 2011 J U D G M E N T K.M.JOSEPH,J The appellant is the second opposite party in the proceedings under Section 22 of the Workmen's Compensation Act. The applicants/respondents 1 to 3 are the legal representatives of one late Sivadasan. 2. Briefly put the case of the applicants is as follows: There was an accident on 09/03/2004 involving late Sivadasan when he was working in the electric post at Vazhakulam Panchayath. He was thrown away due to the electrocution and he died. It is the case of the appellant that there was a project to install tube lights in the streets in various wards of Vazhakulam Panchayath and the Committee of the appellant Panchayath decided to install 75 numbers of single tube set at various wards of the Panchayath. The appellant Panchayath further contended that the Panchayath decided to install the tube by inviting tenders and the quotation of third opposite party being the lowest, he was awarded the work. The M.F.A.No.103 of 2010 2 Panchayath has not engaged any worker is the case of the appellant. There is no employer-employee relationship between the appellant and late Sivadasan, it is contended. 2. The third opposite party filed a written statement wherein he contends inter alia as follows: The deceased Divadasan had taken contract to replace tube lights at various wards of Vazhakulam Panchayath and he actually carried out the work. The third opposite party was asked to sign certain papers by the deceased and he actually signed those papers. While the deceased was engaged in carrying out contract work, he sustained injuries and succumbed to death. 3. Before the Commissioner, Exts.A1 to A4 were produced. Ext A1 is copy of the F.I.R. Ext.A2 is the copy of the postmortem certificate. Ext.A3 is the membership card from K.S.E.B PCC Line Workers Union to the deceased. Ext.A4 is the copy of the S.S.L.C. Book. The first applicant was examined as AW1. The Commissioner found that the deceased Sivadasan was a workman as per the Workmen's Compensation Act and there is employer-employee relationship between the deceased and the M.F.A.No.103 of 2010 3 3rd opposite party. It is found that the K.S.E.B which was the first opposite party could not be made liable. It is further found that the principal employer for whom the work was carried out was the appellant. It is further found that the 3rd opposite party only taken up the work of the appellant/Panchayath and he and the deceased together carried out the work. The work was done under the supervision of the K.S.E.B. Therefore, it is found that the second opposite party i.e. the Panchayath was the principal employer and the 2nd opposite party only engaged the third opposite party and the third opposite party engaged the deceased. Hence the Commissioner found that the appellant is liable to pay compensation as principal employer and it was ordered to deposit Rs.3,05,116/- with interest at the rate of 12% from the date of the accident to the date of deposit. 4. We have heard the learned counsel for the appellant and the learned counsel appearing for the opposite parties. The learned counsel for the appellant contends that the appellant is not liable. The agreement was between the appellant and the 3rd opposite party. It is further contended that the deceased was the sub-contractor of the third opposite party and hence the M.F.A.No.103 of 2010 4 appellant would not be liable. It is further contended that in case the court were pleased to find that the appellant is liable as principal employer, the appellant may be permitted to recover the amount from the third opposite party under Section 12 of the Workmen's Compensation Act. 5. The learned counsel on behalf of the 3rd opposite party would reiterate the findings of the Commissioner. It is submitted that he was only a sub-contractor and that there is nothing on record shows that the deceased had been employed by the third opposite party also. It would appear that the appellant actually did not contest the matter before the Commissioner. Apart from the written statement, there is no evidence on the part of the third opposite party also. 6. We feel that, in the nature of the case, the matter can be remanded back to grant the parties an opportunity to adduce further evidence, if they are advised to. Accordingly, we set aside the impugned order passed by the Commissioner and remand the matter back to the Commissioner. We grant opportunity to all the parties to adduce such evidence as they are advised to. The applicants/respondents 1 to 3 can withdraw M.F.A.No.103 of 2010 5 a sum of Rs.1,00,000/- (Rupees one lakh only) from the amount which is already deposited by the appellant before the Commissioner. The Commissioner will dispose of the matter afresh within a period of six months from the date of receipt of a copy of this judgment. (K.M.JOSEPH, JUDGE) (A.M.SHAFFIQUE, JUDGE) jsr // True Copy// PA to Judge M.F.A.No.103 of 2010 6 M.F.A.No.103 of 2010 7 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010