FA/4520/2002 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 45 of 2002 HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ASHOKBHAI PALABHAI VANKER - Appellant(s) Versus JAYSHREE CORPORATION - Defendant(s) ========================================================= Appearance : MR PRABHAKAR UPADYAY for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/09/2008 ORAL JUDGMENT 1. The present appeal is directed against the judgment and award dated 13th June 2001 passed by learned Commissioner, Workmen's Compensation Act, in FA/4520/2002 2/3 JUDGMENT Workman Compensation Application No.17/95 whereby the said application came to be rejected. 2. According to the appellant, he was working as mason with Jayshree Corporation, that while he was doing plaster work he received injury and therefore he filed Workman Compensation Application No.17/95 before the learned Commissioner claiming compensation. The said application came to be rejected and therefore the present appeal is filed. 3. Learned Advocate for the appellant submitted that the respondent has not produced any documentary evidence or the contract and the facts stated by the appellant before the Commissioner have not been controverted by producing any material on record. He has further submitted that the learned Commissioner has committed an error in misinterpreting section 12(3) of the Act. 4. As a result of hearing and perusal of the record, there is no dispute that the appellant was working with Jayshree Corporation. Assuming that the original owner of the bungalow for whom the work was carried out, is not joined as a party, as per section 12(3) of the Act it was open to the appellant to claim compensation from the contractor. Section 12(3) reads as under: 12(3) Nothing in this section shall be construed as preventing a workman from FA/4520/2002 3/3 JUDGMENT recovering compensation from the contractor instead of the principal. 5. This aspect has not been considered by the learned Commissioner. I am therefore of the view that the matter requires reconsideration by the Tribunal. 6. In the premises aforesaid, the impugned judgement and award is quashed and set aside. The matter is remanded to the tribunal for consideration of the same afresh, especially in light of section 12(3) of the Act. Appeal is allowed to the aforesaid extent. No order as to costs. R & P be sent back forthwith. [K.S. JHAVERI, J.] ar