IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MFA.No. 223 of 2009() --------------------- WCC.80/2004 of Commissioner for Workmen's Compensation , THRISSUR .................... APPELLANT(S): 2ND RESPONDENT ---------------------------- THE SECRETARY, THRISSUR CORPORATION, THRISSUR-1. BY ADV. SRI.K.B.MOHANDAS SRI.T.G.LELLU LAL. RESPONDENT(S): APPLICANT AND RESPONDENTS 1 & 3 ---------------------------------------------- 1. K.G.SURYAN, S/O.GOPALAN, KURIAKOTTIL HOUSE, KOZHIKUNNU, M.G.KAVU P.O., THRISSUR DISTRICT. 2. C.K.JOSEPH, CHITTILAPPILLY HOUSE, P.O.KURUMAL, VELUR (VIA), KUNNAMKULAM, THRISSUR DISTRICT. 3. THE SECRETARY, K.S.E.B., VYDUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM DISTRICT. ADV. SRI.M.B.PRAJITH FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(W.C.C.) No.223 of 2009 ----------------------------------------------- Dated 17th October, 2011. J U D G M E N T K.M.Joseph, J. Appellant is the second opposite party in a proceeding under Section 22 of the Workmen's Compensation Act (for short, 'the Act'). It challenges the order passed by the Commissioner, directing to pay compensation. The Commissioner has found that the workman suffered injuries on 19.4.2003, when he was working on an electric post for repairing street light, he fell down from the post and he suffered injuries. 2. We heard learned counsel for the appellant and the learned counsel for the workman. 3. Learned counsel for the appellant would submit that the appellant should not have been made liable. According to the learned counsel, the workman was actually working under the first opposite party to whom the contract was given and there is no employer-employee relationship between appellant Corporation and the injured workman. The Commissioner has found that the appellant is actually the MFA 223/09 2 principal employer and is liable. According to the learned counsel for the appellant, actually, there was a contract between the appellant and the contractor, in which the contractor has undertaken that the contractor will compensate any workman for any injury and therefore, the appellant Corporation is not liable. 4. We see no merit in this contention. Section 12 of the Workmen's Compensation Act visits the principal employer with the liability to compensate the workman of the contractor as if the employee had been immediately employed by the principal employer. Section 12(1) of the Act reads as follows : “12. Contracting--(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of this trade or business contracts with any other person (hereinafter in this section referred to as the contractor for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be MFA 223/09 3 liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.” 5. Section 12 of the Act does not permit the parties to contract out of this liability by providing for a contrary result in a contract. Such a contract would clearly be un-enforceable as it would defeat the provisions of Section 12(1) and in fact, being the teeth of Section 12(1). Such a contract was not produced before the Commissioner also. But, we are of the view that even if it was produced, it would not advance the case of the appellant, in view of the legal position that the principal employer is rendered liable by Section 12(1) of the Act. In such circumstances, there is no merit in the appeal. MFA 223/09 4 The appeal is dismissed. This will be without prejudice to the rights, if any, available to the appellant. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (true copy)