The right to indemnity under Section 12(2) of the Workmen's Compensation Act arises only if the case falls within Section 12(1), which requires that the work contracted out be ordinarily part of the principal's trade or business.

( 1 ) THIS is an appeal by a con-tractor who was made liable to indemnify the respondent No. 1 who had been made liable to pay compensation under the Workmen's Compensation Act.

( 2 ) THE matter arose in this way. One Ezad Baksh, a Painter Mistri, sustained injury as the result of an accidental fall from scaffolding, whilst he was painting a factory shed which formed part of the premises occupied by responded No. 1 as their place of business. It appears that the workman's left knee was injured and an operation became necessary and some bones or pieces of bone were extracted. There was evidence that the incapacity which resulted from this accident amounted to fifty per cent.

( 3 ) EZAD Baksh was employed as a painter by the appellant who was opposite party No. 2. That seems to be clear. He however did not claim compensation against his immediate employer, but claimed it against the National Sheet and Metal Works Ltd. , opposite party No. 1 who had employed opposite party No. 2 as a contractor to do the painting work to their factory shed.

( 4 ) IT seems to have been conceded that the accident arose out of and in the course of the employment and therefore the applicant was entitled to compensation which was assessed at Rs. 1,470 and no point has been taken as to the correctness of this amount.

( 5 ) THE only question which was agitated in the Court below was whether or not the contractor, opposite party No. 2, was liable to indemnify opposite party No. 1, whose shed was being painted.

( 6 ) THE Commissioner for Workmen's Compensation held that the case came within Section 12 (2), Workmen's Compensation Act and that the appellant, opposite party No. 2, was liable to indemnify opposite party No. 1, the respondent National Sheet and Metal Works Ltd.

( 7 ) THE right of indemnity arises under Sub-section (2) of Section 12, if the case falls within Sub-section (1) of Section 12. That sub-section is in these terms: "where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade of business of the principal, the principal shall be liable to pay to any Workman employed in the execution of the work any compensation which he would have been liable to pay if that Workman had been immediately employed by him and where compensation is claimed, from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the Workman under the employer by whom he is immediately employed. "

( 8 ) IT will be seen that this sub-section gives the workman in certain circumstances a right to recover compensation not from his immediate employer but from a person who had employed the workman's employer to carry out certain work. Normally, a workman can only recover compensation from his employer, but this subsection is an exception and gives the workman a right to proceed against the person who has entered into a contract with the workman's immediate employer by which the latter was to do certain work. If the workman has a right to recover from the person who has employed the workman's employer to do certain work then Sub-section (2) comes into play and the person who is known as the principal who has employed the contractor can recover from the contractor by way of indemnity. The question of indemnifying however only arises if the case falls within Sub-section (1 ).

( 9 ) TO bring the case within Sub-section (1) it must be shown that the person known as the principal has in the course of or for the purposes of his trade or business contracted with another person for the execution by the contractor of certain work a