S.12 of the Workmen's Compensation Act, 1923 confers the right on the principal to be indemnified by the contractor if the principal is made liable to pay compensation. The section applies notwithstanding any agreement or contract between the principal and contractor regarding their liability for payment of compensation under the Act.

Ramakrishnan, J.

A common question of law arises for consideration in these two appeals filed against a common order passed by the Court of the Commissioner for Workmen's Compensation, Kozhikode (for short "the Court") in two separate proceedings, namely W.C.No.97 of 1984 and W.C.No. 98 of 1984 arising out of a single accident in which Thirumurthy, w/o. applicant in W.A.No. 97 of 1984 and Vasantha, D/o. Applicant in W.C.No. 98 of 1984 "were lost their life being buried alive under earth as a result of a landslide. As such we are disposing of the appeals by this common judgment.

2. Relevant facts are not in-dispute and are thus: Both cases, namely W. C. Nos. 97 and 98 of 1984 were applications filed under S.100 of the Workmen's Compensation Act, 1923 (for short "the act" ) claiming compensation for the death of workmen 'admittedly employed by the second opposite party in both cases as contractor engaged by the first opposite party for the purpose of getting a project undertaken by the Public Works Department in the course of its business. The first opposite party is the Superintending Engineer, Project Circle, PWD, Kozhikode. The main project undertaken by the first opposite party was the Kuttiadi Irrigation Project. The work entrusted to the second opposite party by the first opposite party was the construction of a canal forming part of the main project. The deceased were engaged in the work of removal of earth from the work site. On 18-1-1977 when the land at a high elevation slided down they got buried alive and breathed their last under the debris. The applicant in W.C.No. 97 of 1984 is the husband of deceased Thirumurthy and the applicant in W.C. No. 98 of 1984 is the father of deceased Vasantha.

3. First opposite party alone filed written statement and contested the claim. Second opposite party in spite of notice, remained ex parte. In the written statement filed by the first opposite party, the Superintending Engineer has categorically admitted that the deceased were employed by the second opposite party in the construction of irrigation canal for the main project and that they died as a result of the accident which arose out of and in the course of their employment at the work site as averred by the applicants in their applications. The rate of monthly wages claimed in the applications were also not disputed. The only contention raised in the written statement was that the PWD is not liable to pay the compensation as claimed in the applications since the workmen were employed by the second opposite party who was entrusted with the execution of the work as per the terms and conditions contained in the agreement in which it has been specifically provided that the contractor (second opposite party) alone will be responsible for the protection of the workmen and that any payment towards compensation under the Act will be to his credit.

4. The Court, in the light of the evidence contained in the written statement found that the deceased were persons employed as workmen as defined in S.2(1)(n) of the Act read along with entry (viii)(c) of Schedule II of the Act and they died as a result of the accident that arose out of and in the course of their employment at the work site. It was also found that the second opposite party had actually engaged them as workers for performing the work undertaken by him and entrusted by the first opposite party. The Court, however, found on the basis of an interpretation of clause (15) of Ext R1 agreement entered into between the two opposite parties that the liability to pay compensation in regard to the deceased workmen rests 'squarely' on the second opposite party. On the basis of the above finding, the Court directed the second opposite party to deposit with the Court a sum of Rs. 19,200/- in each case totalling to Rs. 38,400/- as compensation payable to the dependents of the deceased workmen within 30 days from the date of receipt of the order. In default the Court directed payment