The main legal point established in the judgment is the interpretation of the word 'business' and 'ordinarily' in Section 12(1) of the Workmen's Compensation Act, 1923, and its application to determine employer liability.

JUDGMENT :

Thomas, J.—Two workmen while engaged in a land excavating operation, were buried alive under heaps of mud billowed on them in a landslide and the site became their grave instantaneously, Dependents of those who died in such a trice made claims for compensation from the owner of the land (appellant) and two others (respondents 2 and 3). The Workmen's Compensation Commissioner (for short 'the Commissioner') found that it was the appellant who had employed them, and on that finding he directed the appellant to pay compensation amount to the dependents of those two victims. These appeals are in challenge of the common award passed by the Commissioner.

2. There is no dispute that at the time of the catastrophe the two workmen were engaged in excavation work on appellant's land. Appellant is a registered society called "Payyannur Educational Society". Appellant's contentions were that the two workmen were not employed by the society but they were recruited by the second respondent to whom the society sold soil at the rate of Rs. 15/- per Lorry load and that the mishap occurred during the operation undertaken by the second respondent who was permitted by the society to do the excavatory work and collect the soil. In other words, appellant's main case is that it was not the employer.

3. The Commissioner found that the victims were actually employed by the appellant-society and hence it was held liable to pay the compensation amount assessed in accordance with the table prescribed.

4. Learned counsel for the appellant contended that the aforesaid finding has no support from reliable evidence in the case and that the evidence has established the second respondent as the employer and that second respondent was permitted to dig the soil.

5. The finding on facts (that the deceased victims were the workmen of the appellant society) is not open to challenge in the appeal filed u/s 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') without being linked to a substantial question of law. However, learned counsel formulated a question like this: When the claimants themselves admitted that the victims were engaged by the second respondent, is it open to the Commissioner to hold otherwise? Learned counsel contended that the aforesaid question is a substantial question of law.

6. We think, even assuming that the appellant's version, on that score, is correct, the ancillary question is whether the appellant-society can escape from liability u/s 12(1) of the Act. The subsection is extracted below:

"Contracting - (1) 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 execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or 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".

7. Learned counsel for the appellant advanced the following arguments to bypass Section 12 of the Act. That provision can be invoked only if the digging work as part of "the trade or business" of the society and further such should have been the normal business of the society. According to the counsel, the ordinary business of the society is to impart education and the digging work was not a part of it at all. Learned counsel invited our attention to the decision of the Constitution Bench of the Supreme Court in Unni Krishnan, J.P. and others Vs.