' This is an appeal brought under section 30 of the Workmen's Compensation Act, 1923 against the decision dated 10-10-1988 recorded by the learned Commissioner Workmen's Compensation, Rawalpindi. Respondents Nos. 2 and 3 did not appear in spite of service, so the appeal is being decided ex parte against them.
The facts giving rise to the appeal captioned above are that Abdul Ghani Butt was an employee of the appellant and he met with an accident on 14-9-1988, resulting in his death while he was working for the appellant under MA. Khan, respondent No. 2 contractor. The widow of the deceased namely Ghulam Sughra, respondent No. 1 brought an application for compensation which was opposed by all the three respondents. The case of the appellant is that since he had given the work on contract to respondent No. 2, he was liable to pay compensation to respondent No. 1 for the loss of the life of her husband namely Abdul Ghani Butt. MA. Khan, respondent No. 2 contractor accepted the agreement with the appellant for the construction and also admitted the accident but said that only the appellant was responsible to pay the compensation. Maqsood Ahmed respondent No. 3 took up the plea that in reality Abdul Ghani Butt deceased was not a workman but a co-partner with his (Maqsood's) father Ghulam Rasul and thus his heirs were not entitled to any compensation. Notices of the appeal were sent to all the three respondents but learned counsel for respondent No. 1 only has appeared and the respondents Nos. 2 and 3 have not put in appearance. Notices were sent by registered post which have not been received back un served the presumption therefore, is that they have reached, respondents Nos. 2 and 3. The appeal, therefore, is being heard ex parte against the said respondents.
3. The appellant has challenged the decision of the learned Commissioner Workmen's Compensation only on the ground that the question of indemnifying the appellant by MA. Khan respondent No. 2 has been refused to be decided by he learned Commissioner. The reason given by the learned Commissioner is that the appellant did not apply for the indemnification as provided in the rules framed under the Workmen's Compensation Act. Rule 41 of the West Pakistan Workmen's Compensation Rules, 1961, is clear on the point. The person claiming for indemnification has to present a notice of claim in cases where the person who has to indemnify is not a party to the case. In the present case MA. Khan who was the contractor was a party, therefore, Rule 41 was not applicable and the learned Commissioner was bound to decide the question of indemnification. Section 12(2) of the Workmen's Compensation Act, 1923 is quite clear on the point It reads as under:- "(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 to and the amount of any such indemnity shall in default of agreement, be settled by the Commissioner."
It is thus clear that the learned Commissioner has to settle the question of indemnification and also to determine the amount to the extent the principal is to be indemnified. The appellant does not dispute the quantum of compensation, therefore, he is to be indemnified from respondent No. 2 in the same sum of compensation as has been determined by the learned Commissioner. So far as respondent No. 3 is concerned, he according to the impugned decision was a contractor to supply labour only to MA. Khan, therefore, is not responsible to pay the compensation.
4. As a result the appeal is accepted, and modifying the impugned decision of the learned Commissioner it is held that the respondent No. 2 namely MA. Khan is liable to indemnify the appellant to the extent of the compensation to be paid by, the appellant.