K.Govindarajan, J.: The claimants filed the above appeal aggrieved by the order dated 6.10.1994 passed by the Deputy Commissioner of Labour, Salem in W.C.No.164 of 1993, rejecting the claim in toto.

2. One Kumar, the husband of the 1st appellant and father of the 2nd appellant was an employee under the 2nd respondent, who entered into a contract with the 1st respondent to construct a roof of a godown in the Spinning Mills of the 1st respondent When the said Kumar was working for the purpose of construction of the roof of the godown, on 19.1.1993 he fell down and sustained injuries. In spite of treatment he died on 12.4.1993. The claimants filed a claim petition in W.C.No.164 of 1995 claiming a compensation of a sum of Rs.10,00,000 as the deceased Kumar was aged about 26 years at the time of death.

3. The 1st respondent-management filed a counter denying the fact even with respect to the contract with the 2nd respondent and the construction work carried on 19.1.1993. On that basis, the 1st respondent denied their liability.

4. The 2nd respondent remained ex parte.

5. The Deputy Commissioner of Labour, (Workmen’s Compensation), Salem considering the said pleading and evidence available on record dismissed the claim petition filed in W.C.No.164 of 1993 holding that the employer and employee relationship between the claimants and respondents was not established and that the claimants have not established that the accident took place in the course of employment. Ultimately, the Deputy Commissioner found that the deceased Kumar is not a workmen employed under the respondents and has not sustained injuries in the accident which arose out of and in the course of his employment on 19.1.1993. On the basis of the said findings, the claim petition was dismissed. Hence, the claimants preferred the above appeal.

6. Learned counsel for the appellants submitted that P.W.4, the co-worker deposed about the accident but the Deputy Commissioner has not even dealt with the said evidence while rejecting the case of the claimants. Referring to the documents, learned counsel further submitted that had the Deputy Commissioner dealt with those documents seriously, he could have come to a conclusion that the accident took place as alleged by the claimants. While this Court referred to the decision in Agricultural College and Research Institute v. S.Sakilabanu, (2004)1 L.L.J. 741, to put a question as to how the 1st respondent-management is liable to pay the compensation when the 1st respondent is not carrying construction as a trade or business, learned counsel for the appellants referred to the provisions of the Workmen’s Compensation Act, hereinafter called ‘the Act’ and cited a number of decisions in support of his submission that though construction of building is not a trade or business, it is for and incidental to the main trade or business and so the 1st respondent-management cannot escape from their liability to pay the compensation.

7. Learned counsel for the Official Liquidator though argued on merits, he has not made any submission with respect to the second limb of argument advanced by the learned counsel for the appellants. According to him, the Deputy Commissioner of Labour has dealt with the matter on merits, examining all the materials available on record and so this Court may not interfere with the said order. Same argument was advanced by the learned counsel for the 2nd respondent.

8. The substantial questions of law that arise for determination in this appeal are:

(1) Whether the 1st respondent-management which was running the Spinning Mills is liable to pay the compensation to a workman engaged by a 2nd respondent-contractor for the purpose of constructing the roof of the godown of the building in the 1st respondent-management mills?

(2) Whether the Deputy Commissioner of Labour is correct in rejecting the claim petition without even dealing with the oral and documentary evidence available on record which speak about the employment and accid

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