JUDGMENT

This Civil Miscellaneous Appeal has been preferred as against the order passed in W.C. No.48 of 2007 on the file of the Deputy Commissioner of Labour, Tiruchirapalli, wherein the first petitioner claimed a sum of Rs. 5,00,000/- and the Tribunal has awarded a sum of Rs.4,26,080/- towards compensation. As against the order passed by the Tribunal the second respondent has filed the present appeal

2. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status/ranking in the Tribunal.

3.The brief facts of the petition before the Tribunal are as follows:

The first respondent is the contractor of the 2 and 3 respondents. The son of claimant, Selvaraj was working under the first respondent, Whileso, on 26.08.2006 when the son of the claimant namely Selvaraj was working in the respondent 2 and 3 temple, Arulmighu Seethalakshmi Sametha Godandaramar temple, the stone fell on the son of the claimant and he died on the spot itself. At the time of death the deceased was aged about 28 years and he was earning a sum of Rs.200/- per day and at the time of accident the deceased was working under the first respondent contractor. The second and third respondents are the temple authorities where the construction work was done by the deceased. Therefore the respondents are all jointly and severally liable to pay the compensation to the petitioners.

4. The brief facts of the counter filed by the second respondent are as follows.

The petition is not maintainable and the same is liable to be dismissed in limine. The petitioners are put to strict proof of the averments made in the petition. The accident was occurred due to the negligence of the deceased and the temple management is no way responsible for the accident. The temple authorities permitted the donors to do the construction work and the first respondent only engaged the deceased for the construction work. Therefore there is no relationship between the deceased as employer and employee. Therefore if any compensation awarded the first respondent and the donors only liable to pay compensation to the deceased. Hence the petition is liable to be dismissed.

5. No counter was filed by the first respondent.

6. Before the Tribunal the petitioner was examined as P.w.1 and marked exhibits Exs P.1 to P4 and no witness were examined on the side of the respondent.

7. After analyzing the evidence adduced by both parties, the Tribunal has awarded a sum of Rs.4,26,080/- towards compensation and directed the second respondent who is the principal employer of the deceased to pay the award amount along with interest @ 12% per annum. Aggrieved by the said order the second respondent has filed the present petition on various grounds.

8. The learned counsel appearing for the appellant would contend that the first respondent herein as petitioner has filed the claim petition seeking compensation for the death of his son alleging that during the course of his employment under the second respondent the stone fell down on his head and he died. Infact the temple has permitted the donor to do construction work in the premises and the donor in turn had engaged the second respondent as Contractor for doing the work and the son of the first respondent was employed with the second respondent therefore the appellant /

second respondent is not liable to pay any compensation to the petitioner. The compensation has to be paid either by the contractor or by the donor. But the tribunal failed to consider the same and awarded compensation by directing the appellant /second respondent to pay the above said amount. The first respondent was under the service of second respondent and therefore the Tribunal ought to have fixed liability on the second respondent who was set exparte . The appellant/second respondent is not a principal employer therefore the order passed by the Tribunal is liable to be set aside by allowing this appeal.

9. On the side of the respondents 1 and 2 none appeared

10. Th