IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 MFA.No. 598 of 2003 ------------------------ WCC.138/1995 of W.C.C.,KOZHIKODE .................... APPELLANT: FIRST OPPOSITE PARTY ---------------------------------------- HEMA RAJ, CONTRACTOR, SANTHI CONSTRUCTION, NEAR ENGLISH CHURCH, NADAKAVU, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS: APPLICANTS AND SECOND OPPOSITE PARTY ------------------------------------------------------------------- 1. BALAN, S/O.CHOYI, VALIYAVEETTILTHAZHAKUNI HOUSE, PALAKKULAM, MOODADI AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. KARTHYANI, W/O.BALAN, VALIYAVEETTILTHAZHAKUNI HOUSE, PALAKKULAM, MOODADI AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 3. MANAGING DIRECTOR, CHERAMAN BEACH RESORT, HYBORNE PLAZA, NEW MOFUSSIL BUS STAND, INDIRA GANDHI ROAD, KOZHIKODE. BY ADV. SRI.R.K.MURALEEDHARAN FOR R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K.P. BALACHANDRAN, JJ. -------------------------------------------------------------- M.F.A. (W.C.C) No 598 of 2003 ------------------------------------------------------------- Dated this the 14th August 2008 JUDGMENT Koshy,J. Appellant is a construction contractor. For the third respondent he has undertaken a contract by which he has undertaken to construct a swimming pool with concrete structure. On 08.01.1994 when one of the employees tried to take water from the pond for the purpose of mixing cement he fell into the pond and died. Contention of the appellant is that he never employed the deceased worker and as per the agreement materials have to be supplied by the employer and water is a material and therefore it is the duty of the third respondent - principal employer to give water and he must have been employed by the third respondent. Third respondent is mentioned as Managing Director of Cheraman Beach Resort, Kozhikode. Notice issued to the third respondent in the appeal was returned stating that the establishment was closed. Second notice was also issued to the third MFA (WCC) 598/03 2 respondent in the new address furnished by the appellant, which was returned stating “expired”. On going through the agreement it can be seen that the obligation of the principal employer was to give materials, but materials have to be taken and used by the appellant. Water was made available in the water tank and for the purpose of mixing cement, while taking water from the pond in the work site itself workman fell into the pond and died. The deceased was a manual worker employed for the construction of swimming pool with concrete structure the cement concrete of which was to be done by the appellant. Deceased went to take water for the purpose of mixing cement. Therefore he is an employee of the appellant himself. It is true that appellant himself was the contractor of the third respondent. Hence the third respondent at the maximum can be called as principal employer and even if the principal employer is directed to deposit the amount the principal employer can recover the amount from the immediate employer under Section 12 (2) of the Act. The appellant and third respondent were found to be jointly and severally liable. We see no ground to interfere with the order passed by the Commissioner for Workmen's Compensation. Finding of facts entered by the Commissioner are supported by reasons and MFA (WCC) 598/03 3 cannot be said to be perverse and no substantial question of law arises for consideration in this appeal. The appeal is dismissed. Sd/- J.B. KOSHY Judge Sd/- K.P. BALACHANDRAN Judge 14/08/2008 en [true copy]