IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 MFA.No. 859 of 1997(B) ------------------------------- WC.218/1996 of THE COMMISSIONER FOR WORKMEN'S COMPENSATION, KANNUR ........ APPELLANT: OPPOSITE PARTY IV ------------------- K.P.KUMARAN, AGED & FATHER'S NAME NOT KNOWN, R.C.C. WORK, C/O. SANDHI HOTEL, T.C.ROAD, THALASSERY. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: APPLICANT & OPPOSITE PARTY I TO II ---------------------- 1. SREEMATHI, AGED 47 YEARS, COOLIM MANAPPATTAM KUNIYIL HOUSE, NOW, RESIDING AT ERIKKALI HOUSE, TEMPLE GATE, TELLICHERRY - 2 KANNUR DISTRICT. 2. K.P.ABDUL KAREEM, I HAB TRAVELS P.B., NO.889, CODE NO.113, MUSCAT, SOUTH OMAN. 3. MRS. E.K.SARA KAREEM, W/O. K.P.ABDUL KAREEM AGED NOT KNOWN I.H.A.B., TRAVELS, P.B. NO. 889, CODE NO.113, MUSCAT, SOUTH OMAN. 4. P.K.ABDUL RASHEED, CONTRACTOR, MUMTHAZ MAHAL, SEETHI SAHEB ROAD, TELLICHERRY. BY ADV. SRI.T.M.ABDUL LATHEEF FOR R4 SRI.V.R.NASAR FOR R4 SRI.M.K.SUMOD FOR R1 SRI.KAUSER EDAPPAGATH FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MFA No.859 OF 1997 ===================== Dated this the 25th day of July 2008 JUDGMENT This appeal is preferred against the award of the Commissioner for Workmen's Compensation, Kannur in W.C.C.No.218 of 1996. The unfortunate claimant while working as a coolie, sustained injuries when the building under construction collapsed and she was buried alive under the debris. She was removed to the hospital where amputation of the leg was effected. She filed a claim application before the Workmen's Compensation Commissioner. I refer to the rank of the parties in the workmen's compensation proceedings. According to the claimants, the building was constructed for respondents 1 and 2. The 3rd respondent is the contractor and the 4th respondent was the person entrusted with the job of doing re-enforcement of the concrete work. The Commissioner found that the claimant is entitled to compensation, but held that respondents 1 and 2 being the owners of the property are liable to pay the compensation. He further held that the 4th respondent being the person, who called her for work should indemnify respondents 1 and 2 or in order words, an order was granted to recover the amount from the 4th respondent by respondents 1 MFA 859/1997 -:2:- and 2. It is against that decision the present appeal is filed. 2. Heard the counsel. The pleading available in the case, i.e of respondents 1 and 2 is to the effect that they had entered into an agreement with the 3rd respondent for construction of the building in the property and the person who sustained the injury was an employee of the contractor and respondents 1 and 2 have nothing to do with the construction activity. 3. On the other hand, the 3rd respondent would contend that he is not a contractor at all and therefore he is not liable to pay compensation. The 4th respondent would raise a contention that he was working under the 3rd respondent only as a worker and therefore there was no employer-employee relationship between the applicant and the 4th respondent. The court considered the materials available by simply extracting the evidence here and there and came to a conclusion that respondents 1 and 2 are principally liable as envisaged under Section 12 of the Act and further invoking its power under Section 12(2) directed the 4th respondent to indemnify respondents 1 and 2. There is a specific averment in the case that the 3rd respondent was the building contractor. There is also indication in the evidence regarding that aspect. It is also specifically pleaded that there is an agreement. If it is so, then it has to be stated that the 3rd respondent will be the contractor, who may be liable for the entire act. The 4th respondent MFA 859/1997 -:3:- contends that he is only a worker under the 3rd respondent. The Workmen's Compensation Commissioner arrived at a decision on the ground that since the claimant has stated that it was the 4th respondent and others, who called her for work that he must be the employer. If there is a real contract the contractor may have supervisors and the supervisors may be in-charge of getting the works and therefore strictly a supervisor may not step into the shoes of an employer for the purpose of affixing the compensation under the Act. These are all materials which requires detailed consideration and analysis. Therefore, I feel the court has to answer the question whether the 3rd respondent is a principal contractor and whether the 4th respondent is a sub contractor or only a worker under the 3rd respondent and whether there is an agreement entered into between respondents 1 and 2 on the one side and the 3rd respondent on the other entrusting the construction activities in the property to the 3rd respondent. When these matters are sorted out, then the only clear picture will emerge so as to determine the points under Section 12 of the Act. Therefore, I set aside the order passed by the Workmen's Compensation Commissioner and direct him to consider the points mentioned by me so as to arrive at a proper decision. Since there is no adequate representation here for all the parties, it is desirable that when the MFA 859/1997 -:4:- case records reaches there, the Commissioner will issue fresh notice to all parties, give them opportunity and dispose of the matter in accordance with law. I make it very clear that there need not be any disturbance on the question of fixation of quantum by the Commissioner. Considering the sad plight of the claimant, if possible, the Commissioner may dispose of the matter within 4 months from the date of receipt of a copy of this judgment. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-