MALANKARA RUBBER AND PRODUCE CO LTD Vs. HAMEED

JUDGEMENT

(1.) This appeal is at the instance of the first opposite patty the Malankara Rubber and Produce Co. Ltd. in W. C. C. 91/93 before the Court of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Ernakulam. Respondents 1 and 2, the applicants in W. C. C. 91/93 are the parents of one Basheer who died in an accident occurred in the factory building in the rubber estate owned by the appellant. The 3rd respondent herein, the contractor was the 2nd opposite party in W. C. C. 91/93. The applicants filed the application under S.22 of the Workmens Compensation Act as their son Basheer met with an accident and succumbed to the injuries arising out of and in the course of his employment under the 3rd respondent in the work of the appellant. The Workmen Compensation Court awarded Rs. 88,548 and directed the appellant to pay the amount to the applicants and the 3rd respondent was directed to reimburse the appellant. Aggrieved by the above order, the 1st respondent in W. C. C. 91/93 had come up in appeal.

(2.) The appellant, a Public Limited Company was owning a rubber estate by name Malankara Estate at Thodupuzha and was engaged in the manufacture and the business of rubber in Kerala. The appellant entered into an agreement with the 3rd respondent in February, 1991 for the fabrication and erection of a structure close to the existing rubber factory at the estate. The 3rd respondent engaged its own workers for the above work and deceased Basheer was one of the workers engaged by the 3rd respondent. On 23rd April 1991 while Basheer was engaged in tying stay wire for the erected pillar, sustained injuries in an accidental fall from the top and succumbed to the injuries. The parents of deceased Basheer filed an application before the Workmen's Compensation Court claiming compensation. The appellant contended that the appellant company entered into an agreement with the 3rd respondent herein for fabrication and erection of a steel structure close to the existing rubber factory and deceased Basheer was a worker under the 3rd respondent and that the accident occurred because of the negligence on the part of deceased Basheer carelessly placing his foot on a loose asbestos sheet of the nearby factory roof and he slipped, lost his grip and fell on the ground. Even though ladder for climbing, safety belt and hook were provided to the construction workers, Basheer did not care to use any of them, and thus the accident was solely due to his own negligence. It was further contemned that S.12 of the Workmen's Compensation Act had no application and the appellant was not the principal employer and extension of the factory building was not part of the trade or business of the appellant and disputed the liability to compensate.

(3.) The 2nd opposite party, the 3rd respondent herein admitted that the appellant had entrusted them with the work of fabrication. But he had entered into an agreement with one Sulaiman for the execution of the fabrication work. As per the above agreement, Sulaiman was required to arrange personnel needed for the work and he had to make payments and to meet other statutory obligations. Deceased Basheer was under the employment and control of the above Sulaiman and the 3'd respondent had no connection with the deceased. It was further contended that the compensation if any, had to be met jointly by the appellant as well as Sulaiman, and that the accident was due to the negligence of deceased Basheer who had not taken any precautionary measures to avoid the accident.