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Appeal No. WCK-131 of 1975, heard on 17th November 1975.

-- Ss. 30 & 12 [as amended by Workmen's Compensation Amendment Act, (XV of 1933)]-Appeal-Liability of contractor-Workmen em ployed through sub-contractor-Application for imploding contractor and sub-contractor rejected by Commissioner and order passed awarding compensation by principal concern--- Commissioner, in circumstances, held, failed to exercise discretion properly-Com missioner, held, bound by S. 12 to decide all questions as to right and amount of indemnity in such cases--Appeal, in circumstances, accepted and case remanded for deciding question of actual employment, and indemnity by contractor.

A I R 1933 Born. 330 held outdated.

A. T. Mahmood for Appellant.

S. I. Siddiqui for Respondent.

Date of hearing: 17th November 1975.

This appeal has been filed under section 30 of the Workmen's Compensation Act against the order of the Commissioner allowing compensation.

2. The respondent while unloading a truck in the premises of the appellant sustained injuries. He was immediately sent to the hospital for treatment. Permanent partial disability was found to the extent of 40 %. The respondent claimed compensation from the appellant. Since it was not paid he filed the claim before the Commissioner under section 10 of the Workmen's Compensation Act, 1923.

3. The claim was resisted on the ground that the respondent was not employed by the appellant as the contract of transportation of goods was given to Messrs Noorani Contractors. Subsequently the appellant made an application for impleading Messrs Noorani Contractors and Messrs Industrial Clearing & Services Ltd., as party but this application was rejected by the learned Commissioner.

4. Evidence was recorded. The learned Commissioner awarded com pensation holding the appellant liable. Aggrieved by this, the present appeal had been filed.

5. The learned counsel appearing on behalf of the appellant admitted that the respondent sustained injuries while unloading goods from the truck within the premises of the company. He did not dispute the extent of disability resulting from the injuries. He also conceded that under section 12 of the Workmen's Compensation Act the appellant was deemed to be the principal and liable to pay compensation but he pointed out that since the respondent was engaged by a contractor the question relating to the liability of the contractor was not decided by the learned Commissioner and the application which was made for impleading the contractor and the sub contractor as party was wrongly rejected.

6. On the other hand the learned counsel for the respondent urged before me that section 12 had no application as a sub-contractor was involved and the liability of the subcontractor could not be decided under this section. He relied upon the case of Bombay High Court reported in the A I R 1933 page 330.

7. 1 have considered the arguments advanced before me and I am of the view that the learned Commissioner failed to exercise his discretion properly in rejecting the application seeking to implead the other two persons as party. Section 12 clearly enjoined upon the Commissioner to decide all questions as to the right to and the amount of any such indemnity. This cannot be done unless the other two persons are impleaded as party. In fact the learned Commissioner did not give any finding as to whether the respondent was in the employment of the appellant or he was in the employ ment of the contractor or sub-contractor to whom the job of transportation of the goods was entrusted. He simply summarised the evidence tendered by both the parties and then proceeded to award the compensation without A touching the question of indemnity. Apparently legal compliance had not been made.

8. The contention of the learned counsel for the respondent that section 12 was not applicable with regard to sub-contractor, has no force in view of the amendment brought about by section 9 of the Workmen s Compensation Amendment Act XXV of 1933, whereby the phrase or in other person .. was added. It seems that the decision of the Bombay High Court was in relation to a case decided prior to the amendment and, therefore, it has no application.

9. In result I allow the appeal and remand the case to the Commissioner for deciding the question as to whether the respondent was in the employment of the appellant or he was engaged through a contractor or sub-contractor after impleading the other two persons as party and give his finding in respect of indemnity if it is found that the respondent was engaged by the contractor or sub-contractor. So far the payment compensation to the respondent is concerned, it remains unaffected as the respondent is entitled to recover the compensation from the appellant whether he was employed by the appellant or the appellant was required to pay the compensation under section 12 of the Act. The question of indemnity is confined to appellant and the other two persons who are to be impleaded as party. I, therefore, order that the amount of compensation determined by the Commissioner and deposited by the appellant be released and paid to the respondent.

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