1. This appeal is directed against the award of the Commissioner of Workmen's Compensation, Madurai, in respect of a fatal accident, resulting in the death of the 1st respondent's son one Ayyavu.
2. The said Ayyavu had been employed by the 2nd respondent-Contractor and he received a personal injury during the course of the employment, resulting in his death, on 29th November, 1976. At the time when the accident to place he was digging a plot measuring 140' length, 110' breadth and 10' depth. In the process of forming a canal at Periakombayar Dam site where the digging was being done. When he was digging the last portion of the post measuring 3 metres length, 2 metres breadth and 4 metres depth, the entire earth fell on his and he died on the spot. The first respondent is the father of the deceased and he filed an application for compensation claiming himself to be the sole heir of the deceased. The claim was opposed both by the 2nd respondent as well as by the Department, which engaged the 2nd respondent a Contractor. After hearing the respective contentions of the parties, the Additional Commissioner for Workmen's Compensation, held that the 1st respondent, the father of the deceased, is entitled to compensation of Rs. 11,520/- together with a cost of Rs. 200/-. However, the Additional Commissioner has apportioned the compensation as one-third payable by there Contractor, the 2nd respondent, and the two-third by the department, which is admittedly the principle employer, as defined under the Act.
3. In so far as the award passed as against the Contractor, the 2nd respondent herein, there is no appeal and therefore, that portion of the award has become final and conclusive.
4. In this appeal, the award passed as against the Department, i.e., two-third of the compensation granted alone has been challenged on the ground that since a right to reimbursement has been given to the Department under S. 12(2) of the Act, the Additional Commissioner should have passed an award directing the Contractor to pay the entire amount. We are at a loss to understand the contention advanced by the appellant. Merely because S. 12(2) of the Act contemplates the Contractor giving an indemnity to the principal employer, in case the principal employer is made liable in respect of a compensation, the appellant cannot say that the Additional Commissioner cannot pass an award as against the principal employer. If the argument advanced by the appellant is accepted, then in no case, a direct award can be passed as against the principal employer. That will run counter to S. 12 of the Workmen's Compensation Act. When the Legislature has specifically provided that an award for compensation is to be passed directly against the principal employer and the principal employer is given a right of indemnification as against the Contractor the Additional Commissioner is entitled to pass an award granting compensation either in full or in part directly against the principal employer, on condition that the principal employer, will get indemnified by the Contractor. In this case, therefore, we do not see any error in the order of the Additional Commissioner directing the appellant, the principal employer to pay two-third of the compensation. Of course, the award of the Commissioner does not say anything about the right of the appellant to get indemnified by the Contractor, as provided in S. 12(2) of the Workmen's Compensation Act. This appears to be either a mistake or inadvertence in the order challenged in this appeal.
5. We therefore, while sustaining the award the Additional Commissioner for Workmen's Compensation, Madurai, specifically provide that the appellant, the principal employer, will be indemnified by the 2nd respondent-Contractor, to the extent of two-third of the compensation amount, as and when, the appellant pays the said amount to the 1st respondent/claimant. In this case, since the full amount has been deposited by the principal employer, and the award only directs a two-third of the amount to be paid by the principal employer to the claimant the two-third of the amount in Court deposit alone will be paid over to the claimant. The balance of the one-third will have to come from the Contractor, as has been directed by the Additional Commissioner. Even in respect of the said two-third compensation, the contractor will have to identity the appellant. It is therefore, made claim that the appellant is entitled to proceed against the Contractor by way of indemnification in respect of two-third of the amount of compensation, which has to be paid by the appellant directly to the claimant. Since the appellant's right to get indemnification arises only when the amount is paid to the claimant, the limitation for enforcing the indemnity will arises only thereafter. No costs.