- (1.)THE respondent in W.C.No.144/1997 is the appellant in the above appeal. For the sake of convenience, the parties are referred to as per their ranking in the claim petition.
(2.)THE facts necessary for the disposal of the appeal are as follows: According to the petitioner/first respondent herein was working as a Mason under the first respondent for two years and the first respondent had undertaken a construction work for the third respondent and on 07.11.1996 when the petitioner was working as a Mason in the building of the third respondent, a bullock cart carrying water tank hit against scaffolding and the petitioner fell down over the electric wire and sustained serious injuries. According to the petitioner he was aged about 29 years and was earning an income of Rs.3,900/- per month.
The first respondent filed a counter statement denying the averments contained in the claim petition. It was contended by the first respondent that he was not aware of the accident as he was not present at the time of accident and he was not aware of the age and income of the petitioner. The third respondent had engaged second respondent to construct his building and the petitioner was employed under the second respondent and the second respondent alone was paying salary to the petitioner and as such, the first respondent has nothing to do with the petitioner. The first respondent further contended that he was not liable to pay any compensation to the petitioner.

The second respondent filed a counter statement contending that he was employed under the first respondent and he was not the contractor engaged by the third respondent as claimed by the first respondent whereas the first respondent under the contract entered by him with the third respondent was constructing the building for the third respondent and while working as a Mason, the petitioner met with an accident on 07.11.19996 and sustained injuries. He further contended that since the petitioner was a workman under the first respondent, the second respondent is not liable to pay any compensation to the petitioner.

The third respondent filed a counter statement contending that he received a plan of the building alone from the first respondent and the first respondent entrusted the construction work to the second respondent and as such, the petitioner was a workman under the second respondent. The third respondent further contended that the petitioner was getting his salary only from the second respondent and he was not aware of the accident and injuries sustained by the petitioner. The third respondent further contended that the petitioner is the brother of the second respondent. The third respondent further contended that there is no employer and employee relationship between him and the petitioner and as such no compensation is payable by him.

Before the Commissioner for workmen's compensation, the petitioner was examined as P.W.1 and on the side of the petitioner one Doctor was examined as P.W.2. On the side of the respondents, one Karthikeyan was examined as R.W.1 and the second respondent was examined as R.W.2. On a consideration of the evidence available on records, the Commissioner for workmen's compensation held that the second respondent as a contractor has undertaken the construction work for the third respondent and the petitioner was a workman under the second respondent and he worked as a Mason under him. On the said finding the Commissioner for Workmen's compensation further held that the third respondent was the principal employer. The Commissioner fixed the monthly income of the petitioner at Rs.2000/- by applying the provisions of the Minimum Wages Act. Considering the nature of injuries sustained by the petitioner, the petitioner was awarded a sum of Rs.1,37,267/- as compensation together with interest at the rate of 12%. Being aggrieved by this, the third respondent has filed the above appeal.

(3.)LEARNED counsel for the appellant submits that the finding of the Commissioner that the third respondent/appellant herein was the principal employer of the petitioner/first respondent herein is legally unsustainable. LEARNED counsel with reference to the evidence on record, was unable to challenge the factual finding of the Commissioner that the petitioner was workman under the second respondent and he was working as a Mason under him. LEARNED counsel is also unable to challenge the finding of the Commissioner that the second respondent under the contract was entrusted the work of constructing the building for the third respondent/appellant herein. LEARNED counsel for the appellant fairly submits that he is not challenging the quantum of compensation awarded by the Commissioner.
To appreciate the contention of the learned counsel for the appellant, it has to be considered as to whether the factum of employment of the petitioner/first respondent as a Mason under the second respondent while the second respondent was carrying out the building construction work for behalf of the third respondent is sufficient to hold the third respondent as the principal employer of the petitioner/first respondent. In this context it is useful to refer to the decision of the Division Bench of this Court rendered in the case of K.Kamalaveni and another Vs. The Managing Director, Subbathal Spinning Mills (P) Ltd. reported in 2004 (3) CTC 770. The facts of that case as stated in paragraph 2 of the Judgment reads as follows:

"One Kumar, the husband of the 1st appellant and father of the 2nd appellant was an employee under the 2nd respondent, who entered into a contract with the 1st respondent to construct a roof of a godown in the Spinning Mills of the 1st respondent. When the said Kumar was working for the purpose of construction of the roof of the godown, on 19.1.1993 he fell down and sustained injuries. In spite of treatment he died on 12.4.1993. The claimants filed a claim petition in W.C.No.164/1995 claiming a compensation of a sum of Rs.10,00,000/- as deceased Kumar was aged about 26 years at the time of death."

In that factual background the Division Bench after considering the various provisions of the Workmen's Compensation Act as well as several other decisions, laid down as follows:

"All the above said decisions dealt with the scope of S.12 of the Act in which provision also, the accident should occur in the course of or for the purpose of employer's trade or business to claim compensation. To attract S.12 of the Act, such work should be executed through a contractor. In the present case, the factual finding is that a godown was constructed in the 1st respondent-management mills through the 2nd respondent-contractor for constructing the roof of the building, and the deceased was engaged and in course of his employment he died. In view of the said finding of the Deputy Commissioner, S.12 of the Act is applicable to the facts of the case. According to S.12 of the Act, the 1st respondent-management mills, on whose instruction the godown was constructed for the purpose of their business, have to be construed as principal employer though the deceased was immediately employed by the 2nd respondent-contractor. In view of the above, the 1st respondent-management mills are liable to pay the compensation to the appellants-claimants as fixed by the Deputy Commissioner."