IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 MFA.No. 185 of 2005(A) -------------------------------- WCC.6/1987 of W.C.C.,ERNAKULAM .................... APPELLANT/ OPPO.PARTY NO.I. ----------------------------------------------- E.J.PETER, EDASSERY, CONTRACTOR, XL/1789, MANIMALA ROAD, KOCHI 18. BY ADV. SRI.KRB.KAIMAL (SR.) RESPONDENTS/ APPLICANTS AND OPPO.PARTY NO.2. ------------------------------------------------------------------------------ 1. PENGAN (DECEASED)REPRESENTED BY HIS WIFE AND LEGAL HEIR SMT. PALAKADI, THEKKUMUDIKKOOTTAM, E.COLONY, ANKAMALI. 2. PALAKADI, THEKKUMUDIKKOOTTAM, `E' COLONY, ANKAMALY. 3. THE FOOD CORPORATION OF INDIA, REPRESENTED BY ITS MANAGING DIRECTOR, FCI HEAD QUARTERS, 16.20. BHARAKAMBA LANE, NEW DELHI-1. ADV. SRI.P.JACOB VARGHESE, SC, FCI FOR R3 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2008, ALONG WITH MFA NO.186 OF 2005 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO.185/2005 ORDER ON I.A. NO.3507/2005 IN M.F.A. NO.185/2005 DISMISSED 11/07/2008. SD/- J.B.KOSHY, JUDGE SD/- V.K.MOHANAN, JUDGE // TRUE COPY // P.S. TO JUDGE Rs/ J.B. Koshy & V.K.Mohanan, JJ. -------------------------------------- M.F.A. Nos. 185, 186, 187, 188 and 189 of 2005 --------------------------------------- Dated this the 11th day of July, 2008 Judgment Koshy,J. Appellant was the opposite party No.1 in W.C.C.No.6 of 1987 and connected cases on the file of the Commissioner for Workmen's Compensation, Ernakulam. Opposite party No.2 was the Food Corporation of India, third respondent herein. Appellant was the contractor under the third respondent for the construction of the godown for the Food Corporation of India. While removing earth for the construction work, a landslide occurred and five employees died. Dependents filed application for compensation. Contention of the appellant was that he was purchasing earth from one Thomas. Thomas was taking earth from various places and he is not the employer. The Commissioner found that under section 12 (1) of the Workmen's Compensation Act, Food Corporation cannot be asked to pay the amount because the incident did not occur in the construction site. Even if Food Corporation is made liable, the Food Corporation is entitled to realise the amount from the contractor. M.F.A.No. 185/2005 and connection 2 The only dispute is whether the appellant can be termed as the employer. Appellant was the contractor for the construction of the above mentioned godown for the Food Corporation of India. For that purpose, earth was removed. Even if Thomas who was examined as DW1, he was an intermediary for the appellant only for removing the earth. In any event, evidence was gone into by the Commissioner in detail and on the basis of evidence found that the deceased employees were employed by the appellant. Under section 30 of the Act, appeal will lie only if there is a substantial question of law. Finding of the Commissioner is based on evidence. Appellant was the real employer. Since this is a finding of fact, we are of the opinion that appeal will not lie. Hence all the appeals are dismissed. J.B.Koshy Judge V.K.Mohanan Judge vaa M.F.A.No. 185/2005 and connection 3 J.B. KOSHY AND V.K.MOHANAN,JJ. ------------------------------------- M.F.A. Nos.185, 186, 187, 188 and 189 of 2005 ------------------------------------- Judgment Dated:11th July, 2008