B.K. Somasekhara, J.These two appeals are invoked against the award passed by the Commissioner for Workmens Compensation, Eluru in W.C. No. 24 of 1989 dated 12-4-1990. C.M.A. No. 331/91 is filed by Opposite Party No. 3 whereas C.M.A. No. 353/91 is filed by Opposite Party Nos. 1 and 2. Respondents 1 to 4 in C.M.A. No. 331/91 who are the legal representatives of the deceased are the claimants before the Commissioner. The claimants sought compensation from the Opposite parties u/s 3 of the Workmens Compensation Act (in short, the Act) alleging that one S. Katamraju was working as a helper under Opposite Party No. 2 on daily wages of Rs. 15/- and subsequently on monthly wages of Rs. 750/-, he was working under Opposite Party No. 3, a contractor in connection with the installation of transformers and laying of connecting lines since about one month prior to 12-1-1989 and while he was working as such, he fell down due to electrocution and succumbed to the injuries. Therefore, they alleged that the deceased died in the course of the employment under the Opposite parties and therefore claimed compensation of Rs. 28,522/-. The Opposite parties in general denied all the material allegations and in particular denied their liability to pay the compensation. The learned Commissioner held an enquiry into the claim wherein two persons were examined on behalf of the claimants as per A.Ws.1 and 2 and four persons were examined on behalf of the opposite parties as per R.Ws.1 to 4 and Exs.P-1 and R-1 are got marked by way of documentary evidence. After hearing both the sides, the learned Commissioner awarded Rs. 67,952/- byway of compensation fixing joint and several liability on the Opposite parties with a direction to pay the amount 40 within 30 days of the receipt of the copy of the order and further directed that Opposite parties 1 and 2 are entitled for indemnification by Opposite Party No. 3 as per Section 12(2) of the Act. Aggrieved by the quantum of compensation as such awarded by the learned Commissioner, Opposite parties 1 and 2 have filed C.M.A. No. 353/91 whereas aggrieved by the direction to 45 indemnify opposite parties 1 and 2, the Opposite Party No. 3 has filed C.M.A.

2. From the findings of fact which need not be reconsidered, it is apparent that the deceased S. Katamraju was working as an employee under Opposite Party No. 2 at the relevant time and he was engaged in the work to be executed by Opposite Party No. 3 as a contractor and in the course of such employment, he was electrocuted, fell down, suffered the injuries and died as a consequence thereof. He was aged 19 years and his wages were Rs. 750/- per month. Therefore with the aid of Schedule IV of the Act, the learned Commissioner fixed the compensation as above. In the operative portion of the award directing payment of compensation by Opposite parties 1 and 2 to the claimants, the learned Commissioner added the following direction:

"It is also hereby ordered that Opposite parties 1 and 2 are entitled for indemnification by the contractor, Opposite Party No. 3, as per Section 12(2) of the Act."

3. Although C.M.A. No. 353/91 could have been taken up for consideration since it involves the quantum of compensation, since there is no representation for the appellants although waited till 2-55 PM, it can be taken that the appeal is not pursued on behalf of the appellants and it deserves to be dismissed for default.

4. Now taking up C.M.A. No. 331/91, the only question involved therein is whether the learned Commissioner was right in law in issuing such direction as a part of the operative-portion of the award declaring the right of Opposite Parties Nos. 1 and 2 to be indemnified by Opposite Party No. 3 in regard to the payment of compensation to the claimants u/s 12(2) of the Act. Mr. Durgaprasada Rao, the learned Counsel for the appellant has contended that such a direction forming part of the award is illegal and out of the scope of the proceedings before the learned Commissioner for two reasons viz, (1) that there was no plea or claim by Opposite Party Nos. 1 and 2 regarding indemnification of their payment of compensation to the claimants by Opposite Party No. 3 and secondly the learned Commissioner had no jurisdiction to pass such an order in a proceedings u/s 3 of the Act, as the two provisions are quite independent of each other in so far as the rights and liabilities of the employer and contractor inter se are concerned.

5. Miss. Devika, the learned Counsel for the respondents/claimants, has nothing to say in the matter in view of the legal position that the claimants were entitled to proceed against both the employer and contractor by virtue of Section 12(2) of the Act and any dispute between the opposite parties was to be decided between them not having any effect on the claimants.

6. The counter-affidavit filed on behalf of Opposite Party Nos. 1 and 2 except denying certain material facts and allegations and denying the liability to pay the compensation to the claimants never pleaded either categorically or impliedly that there is the liability on the part of Opposite Party No. 3, the contractor, to indemnify Opposite Party Nos. 1 and 2 in paying the compensation to the worker in case directed by the Commissioner nor there was any contract in relation to the same or otherwise nor that the Opposite Party No. 3 was liable to indemnify in law as a part of the terms of the agreement to execute the work in question. However, Opposite Party No. 3 also did not say anything in this regard except denying the allegations and facts and pleading for dismissal of the petition as against him. The learned Commissioner in the impugned award without referring to the factual aspects of the counter-affidavits as above dealt with the question of liability of Opposite Party No. 3 to indemnify Opposite Party Nos. 1 and 2, issued directions in the operative portion of the award as above by interpreting Section 12(2) of the Act imposing the liability on the part of the contractor to indemnify the employer in paying the compensation and as an order to be passed by the Commissioner under the said provision. The reasoning of the learned Commissioner has to be found in his own words:

"... Regarding liability for payment of compensation, the opposite Party- 3 is a contractor and employer of the deceased workman, whereas the opposite Party-1 and opposite Party No. 2 are the principal employers of the deceased workman. As per Section 12(2) of the Workmens Compensation Act, 1923 - where any person in the course of or for the purpose of his trade or business contracts with any other person for the 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 any workman employed in the execution of the work any compensation which he would have been liable if that workman had been immediately employed by him and where compensation is claimed from the principal, this Act shall 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.

Where the principal is liable to pay compensation under this Section, he shall be entitled to be indemnified by the contractor if (sic. or) any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this Section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation and all questions as to the rights to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.

Nothing in this Section shall be construed as preventing a workman from recovering compensation from the contractor. Therefore Opposite Party No. 3 who is the employer of the deceased workman is liable for payment of compensation. However, in view of Section 12(2), the principal shall be liable to pay to any workman employed in the execution of 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 the Act shall apply as if references to the principal were substituted for reference of the employer. Therefore, Opposite Party-1 and Opposite Party-2 arc hereby directed to deposit the above said compensation payable to the workman and got indemnification by the contractor (the Opposite Party-3). Hence the Opposite Party-1 and Opposite Party-2 are hereby directed to deposit jointly and severally an amount of Rs. 67,952/- within 3 days of receipt of communication of this order by way of an uncrossed demand draft drawn in favour of the Commissioner for Workmens Compensation, Eluru on State Bank of India, Eluru. It is also hereby ordered that Opposite Party-1 and Opposite Party-2 are entitled for indemnification by the Contractor (Opposite Party No. 3) as per Section 12(2) of the Workmens Compensation Act."

Mr. Durgaprasada Rao, the learned Counsel for the appellant has pointed out that the learned Commissioner has gone into such a question without the factual particulars called pleadings and proof and according to him in the absence of the plea, the parties will not be able to produce the material before suffering the liability of indemnification, particularly, a contractor to explain the cause of the accident and to plead that there was a contract contrary to the statutory obligation as required under the provision. The learned Advocate has also fortified himself with a pronouncement of the High Court of Kerala in Executive Engineer v. Santha 1985 ACJ 573 in support of his contention that in the absence of plea regarding the indemnification, the Commissioner cannot settle such a question u/s 12(2) of the Act. He has also fortified himself with a pronouncement of the High Court of Madras in Mulla Madina Saheb Vs. The Province of Madras, in support of his contention that the matter involving Sections 3 and 12(2) of the Act are quite independent with each other and the Commissioner does not get jurisdiction to pass an order u/s 12(2) of the Act, unless there is a plea or proof in regard to the question of indemnification.

7. On a deep probe into the matter, there appears to be all the force in the contention of the learned Advocate for the Appellant. Section 3 of the Act deals with the employers liability for compensation under the circumstances enumerated in the provision to be paid to the dependants of the injured deceased workman and Section 4 deals with the amount of compensation to be determined by the Commissioner and Section 4A deals with compensation to be paid within a particular time and penalty for default, These provisions have nothing to do either with the apportionment of the compensation or apportionment of liability in paying the compensation. Because, Section 8 of the Act deals with the distribution of compensation. In regard to the liability of the employer, Section 3 itself imposes an obligation on an employer to pay the compensation as directed by the Commissioner. Section 3 has nothing to do with the determination of liability of any other person apart from the employer. But Section 12 of the Act deals with the obligation of parties to the contract in case of payment of compensation to a workman or the dependants. Sub-Cl. (1) of Section 12(2) of the Act makes the contractor liable along with the principal to pay the compensation, if so ordered. Sub-Cl.(2) of Section 12(2) makes the principal liable to pay the compensation, however subject to indemnification by the contractor, regarding which all the questions as to the right to and amount of any such indemnity shall be settled by the Commissioner. Sub-Cl. (3) of Section 12 leaves open on option to the workman (including the dependants) from recovering the compensation from the contractor instead of the principal. The sum and substance of these provisions, if read with Section 3 of the Act, means that if the Commissioner determines and directs payment of compensation u/s 3 of the Act, the employer and the principal will be liable in addition to the contract, however, with the option to the claimants to seek recovery of the compensation either against one or both of them. But Sub-CI.(2) Section 12 if properly read within the following words would bring out the clear meaning that the determination of question of indemnity by the learned Commissioner is quite independent of determination of compensation and directing payment to the claimants u/s 3 of the Act:

"12(2): Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation and all questions as to the right and the amount of any such indemnity shall in default of agreement be settled by the Commissioner"

On the face of it, such a liability of indemnification on the part of the employer or principal shall be, in the absence of a contract to the contrary. Patently it requires basic facts to determine the nature, the extent and the legality of the liability of the indemnity to be fastened on the contractor to indemnify the employer from paying the compensation. As the very provision implies an agreement to the contrary, meaning thereby, that the employer and the contractor may agree in regard to the nature, extent and the limits of liability to indemnify. In other words, such questions arise out of the plea and the denial. The Commissioner, to assume jurisdiction without the jurisdictional facts to determine such facts to determine such questions appears to be beyond the scope of the provision. That is what the High Court of Kerala in Executive Engineers case, in para 3 held as follows:-

"... It is true that in default of agreement, it is both the right and duty of the Commissioner to settle all questions as to the right to and the amount of any such indemnity. Even so, due regard having had to the wording of Sub-section 2 of Section 12 of the Act, we find it difficult to agree with the argument of the Government Pleader, that the Commissioner is under a statutory obligation to decide such questions even when neither of the parties raised that question, and there was no issue before him. It appears to us that the true import of the wording in sub-section (2) of Section 12 of the Act is that, in default of agreement, where any question as to the right to and the amount of indemnity is raised by all or any of the parties to the proceedings, it is for the Commissioner to settle such questions. It would be unreasonable to construe that the statute lays down an obligation on the part of the Commissioner to decide suo motu a question the parties before him were not interested in raising.

Having due regard to the true and correct implications of the provisions supra, this Court respectfully agrees with the High Court of Kerala as above. In Mulla Madina Sahebs case (2 supra), the question relating to the liability of indemnification u/s 12 of the Act was considered. It was held therein that an order awarding compensation was distinct and different from an order allowing or disallowing a claim for indemnity for the amount of compensation paid and an order holding the principal liable to pay compensation u/s 12 did not give the principal an absolute right to claim indemnity from the contractor u/s 12(2). It was further held that Section 12(2) gave the Commissioner jurisdiction to decide all cases of disputed right to indemnity and the dispute between the Government and contractor came within Section 12(2) and as it was the Government which claimed a right of indemnity, it was for the Government and not the contractor to move the Commissioner to have the right adjudicated upon u/s 12(2). This Court respectfully agrees with such a view having due regard to such an implication of law under the provision. It may be concluded that the Commissioner cannot suo motu determine the question of indemnification by a contractor to the employer or the principal in regard to the payment of compensation u/s 3 of the Act and Section 4A of the Act unless such a question is raised by necessary pleading and necessary facts either as a part of the proceedings u/s 3 of the Act or independently by separate proceedings giving opportunity to the contractor or the party against whom such liability of indemnification as such has to be mulcted and after holding an enquiry into such questions and by passing appropriate orders in accordance with the said provision and not otherwise. In the present case, the order of the learned Commissioner issuing directions to Opposite Party No, 3 to indemnify Opposite Party Nos. 1 and 2 regarding the compensation to be paid to the claimants is beyond the scope of Section 12(2) of the Act and patently illegal and requires to be set aside. However, this shall not be taken as an expression that Opposite Party Nos. 1 and 2 are debarred from seeking such reliefs quite independent of the present proceedings, if law permits.

8. In the result, C.M.A. No. 331/91 is allowed and the award of the learned Commissioner only in regard to the direction to Opposite Party No. 3 to indemnify Opposite Party Nos. 1 and 2 in paying compensation to the claimants is set aside.

9. C.M.A. No. 353/91 is dismissed for default.

10. The claimants shall be entitled to recover the compensation, if not already paid, or withdraw the same, if already deposited.

11. There shall be no order as to costs.