NATIONAL INSURANCE COMPANY v. RANJULATA BHUYAN — 1997 DIGILAW 186 (ORI)

A. PASAYAT, J. ( 1 ) -IN this appeal under the letters patent, National Insurance Company Limited (hereinafter referred to as, "the insurer") calls in question legality of judgment delivered by a learned Single Judge of this court in an appeal under Section 30 (1) of the workmen's Compensation Act, 1923 (in short. "the Act" ). The question involved is a complex one, and being essentially a question of law. detailed reference to factual aspects leading to filing of the present appeal is unnecessary. ( 2 ) ONE Trilochan Bhuyan (hereinafter referred to as "deceased Trilochan"), who was engaged as a helper of the truck bearing registration No. ORU 4741, faced with an accident on 21. 1. 1989 which arose out of and in course of his employment. Ultimately he breathed his last. His brother Sudarsan naik (hereinafter described as 'claimant' lodged a claim for compensation of Rs. 90,000/-from Anirudha Rout, owner of the truck (hereinafter referred to as 'the owner' ). But since the vehicle in question was subject-matter of insurance, and the insurer had accepted to indemnify the award if any made, it was stated that ultimate liability was that of the insurer. At the time of death of the deceased Sudarsan. the claimant was unemployed, and was totally dependent on his brother, deceased Trilochan for his sustenance. ( 3 ) OWNER took the stand that the vehicle was subject-matter of insurance, and therefore, liability if any was of insurer. He accepted that the deceased was his employee and was being paid Rs. 800/- per month as salary. Insurer took the plea of denial of the required and the applicant to prove the allegations. The Assistant Labour Commissioner-curn-Commissioner under the workmen's Compensation Act (in short, 'the Commissioner')allowed the claim application by judgment dated 5. 6. 1989 inter alia holding that the deceased was a helper of the truck at the time of accident and as such came within the purview of workman as defined under the Act and the death was due to injuries sustained which were sustained in course of his employment. The insurer assailed the decision before the Court in Miscellaneous Appeal No. 322 of 1989. By judgment dated 20. 2. 1991, since reported in National Insurance Co. v. Sudarsan Bhuyan and Anr. allowed the appeal and remitted the case to the Commissioner for fresh disposal. The insurer assailed the decision before the Court in Miscellaneous Appeal No. 322 of 1989. By judgment dated 20. 2. 1991, since reported in National Insurance Co. v. Sudarsan Bhuyan and Anr. allowed the appeal and remitted the case to the Commissioner for fresh disposal. Direction was given to the Commissioner to take a fresh decision after giving opportunity to the parties to adduce further evidence, and to record a clear finding about dependency of the claimant and his entitlement to compensation on that basis. Parties were given opportunity to adduce materials/evidence in support of their respective stands. The case was reconsidered. During pendency of the case, claimant Sudarsan died on 4. 4. 1991. His widow Ranjulata Bhuyan (respondent No. 1) filed an application for being impleaded as a party in place of her husband. On hearing the parties, the Commissioner allowed the application for substitution and impleaded Ranjulata in place of her deceased husband. The Commissioner held that claimant being minor brother of the deceased having no source of income was fully dependent on the earning of his elder brother, the deceased Trilochan. The deceased was aged about 20 years at the time of death, and ranjulata being widowof Sudarsan, the claimant is entitled to get compensation payable to sudarsan Quantification of the compensation was done at Rs. 71,680/ -. ( 4 ) IN the appeal before the learned Single judge it was urged that Ranjulata should not have been considered as a dependent, and therefore, the conclusions of the Commissioner were perverse. Referring to various decisions which were cited by the parties in support of their respective stands, it was observed by the learned Single Judge, that the commissioner was justified in his view that ranjulata was entitled to compensation. ( 5 ) IN support of the appeal, the learned 1. 1992 (1) TAC 202. counsel for the insurer submitted that Sections 8 (4) and 23 of the Act and Rule 41 of the Workmen's Compensation Rules, 1923 (in short, 'the Rules') read with the definition of workman contained in Section 2 (i) (n) bring within its compass the dependant of the workman and the word 'workman' as occurring in Section 9 would mean the workman himself if he is alive and his dependants if he is not. Section 9 rules out passing of compensation by succession of heirs of a deceased workman who are not his dependants. Section 9 rules out passing of compensation by succession of heirs of a deceased workman who are not his dependants. Definition of the term 'dependent' would mean that it is not intended to benefit all the heirs of a deceased workman, and as indicated above to embrace only those relations who depend upon him for their daily necessities. The kinship coupled with dependency is thus made the sole criterion for a person to fall within the ambit of the definition. According to learned counsel for respondent No. 1, a too narrow view which defeats purpose of the Act which is a beneficial piece of legislation should not be taken. He supported the judgment of learned Single Judge. ( 6 ) IT is to be noted here that the Madras high Court in B. M. Habsebullah Marciar v. Periaswami, held that payment of compensation to the heirs of the deceased workman, who are not his dependants, is ruled out. It was held that Section 8 (4) made it absolutely clear that the Act was not intended to benefit any person except the workman and his dependants and that the definition of the term 'dependant' would show that it is not intended to benefit all the heirs of the deceased workman, but to embrace only those relations, who, to some extent, depend upon him for their daily necessities. Contrary view has been expressed by the Kerala High Court in commissioner for Workmen's Compensation v. Mohanan, by Bombay High Court in margarida Gomes v. M. Mackenzie and Co. , calcutta High Court in Pasupati Dutt v. Kelvin jute Mills Karnataka High Court in Kaueri structural v. Bhagyam and Madhya Pradesh high Court in Reference under Section 27, workmen's Compensation Act. It is to be noted that in an earlier case, the Madras High court in Abdurahiman v. Nala Kaun Malikkal beran Kova observed that once an allotment of compensation to a dependant or a distribution of compensation money among several dependants is made, the compensation so allotted or distributed becomes the property of the dependant and if the dependant dies, the said sum being his property will devolve on his or her heir or heirs and will not revert back to the employer. The learned Single Judge preferred to adopt the latter view. The learned Single Judge preferred to adopt the latter view. ( 7 ) WHEN the compensation amount is deposited with the Commissioner it becomes the property of, sole dependant of the deceased workman, and if the sole dependant dies prior to payment of that compensation the amount would devolve on the heirs of the dependant, and not on the heirs of the deceased workman. Jurisdiction of the Commissioner is only to decide about the dependant who is entitled to compensation on the date of death of the workman. Once that decision is made the Commissioner has discharged his duty under the Act and payment is to be ordered by him. When the Act and the Rules have not conferred on the Commissioner any right to settle the dispute, if any, between the heirs of the dependant of a workman, it is difficult to clothe in with such power on a complicated issue of a civil nature as incidental to his right to direct payment to the dependant. Once an allotment of compensation to a dependant or a distribution of money amongst several dependants is made, the compensation so allotted or distributed becomes the property of the dependant and if the dependant dies, the said sum, being his property, will devolve on his or her heir or heirs. This ( 8 ) AIR 1938 Madras 402. was the view expressed earlier by the Madras high Court in Abdurahiman's case (supra ). 8. On a close reading of the decision in b. M. Habeebullah's case (supra), the position is clear that in case of death of a workman, compensation under the Act is payable to his dependant coming within the meaning of that term under the Act. was the view expressed earlier by the Madras high Court in Abdurahiman's case (supra ). 8. On a close reading of the decision in b. M. Habeebullah's case (supra), the position is clear that in case of death of a workman, compensation under the Act is payable to his dependant coming within the meaning of that term under the Act. The term 'dependant' is defined in Section 2 (l) (d) and it reads as follows : (D) 'dependant' means any of the following relatives of a deceased workman, namely: (i) a widow, a minor legitimate son, an unmarried legitimate daughter, or a widowed mother; and (ii) if wholly dependant on the earnings of the workman at the time of his death a son or a daughter who has attained the age of 18 years and who is infirm; (iii) if wholly or in part dependanton the earnings of the workman at the time of his death- (a) a widower, (b) a parent other than a widowed mother, (c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate if married and a minor of if widowed and a minor; (d) a minor brother or an unmarried sister or a widowed sister if a minor. (e) a widowed daughter-in-law, (f) a minor child of a pre-deceased son, (g) a minor child of a pre-deceased daughter where no parent of the child is alive, or (h) a paternal grandparent if no parent of the workman is alive; no deep scrutiny is needed to conclude that the expression 'dependant' includes 'a minor brother or an unmarried sister or a widowed sister of a minor', if wholly or in part dependant on the earnings of the workman at the time of his death. This is dear from the provision itself. Proviso to Section 8 (1) lays down that in the case of a deceased workman, an employer may make, advances to any dependant on account of compensation not exceeding an aggregate of one hundred rupees and so much of such aggregate as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repay to the employer. If the. Commissioner is satisfied after any inquiry which he may deem necessary that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. If the. Commissioner is satisfied after any inquiry which he may deem necessary that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. This is apparent from subsection (4) of Section 8. Sub-section (1) of section 22 mandates that no application for the settlement of any matter by a Commissioner other than an application by a dependant or dependants for compensation shall be made unless and until some question has arisen between the parties in connection there with which they have been unable to settle by agreement. A dependant of a deceased workman may apply to the Commissioner for the issue of an order to deposit compensation in respect of the death of the workman as provided in rule 8 (1) of the rules, and the application is to be made in Form-G. ( 9 ) A dependant or all dependants are covered by the expression 'dependant' as defined in Section 2 (l) (d), and are entitled to receive compensation for death of the deceased workman. "a conspectus of the relevant provisions makes it clear that the legal heirs of the deceased dependant will receive compensation to the exclusion of the heirs of the deceased workman. The view expressed by the Kerala High Court in the case of commissioner for Workman's Compensation (supra) accords with the spirit of the Act which is beneficial piece of legislation. The conclusion of learned Single Judge holding ranjulata to be entitled to compensation is in order and needs no interference. ( 10 ) SO far as quantum aspect is concerned, it is alleged by the learned counsel for insurer that no definite material was placed before the authorities about income aspect, and therefore, the Commissioner and the learned Single Judge erroneously proceeded on the premises that the deceased was getting rs. 800/- per month. On verification of records, we find the statement to be correct. However, taking an over-all view of the matter, and the usual salary received by a helper at the relevant time, the learned counsel for insurer and the claimant agreed that the quantum can be fixed at Rs, 62,000/- (sixty-two thousand ). The quantum fixed is fair and reasonable. Out of the said amount a sum of Rs. However, taking an over-all view of the matter, and the usual salary received by a helper at the relevant time, the learned counsel for insurer and the claimant agreed that the quantum can be fixed at Rs, 62,000/- (sixty-two thousand ). The quantum fixed is fair and reasonable. Out of the said amount a sum of Rs. 50,000/-shall be kept in a fixed deposit in a nationalised bank for a period of five years initially, and the balance amount shall be paid to Ranjulata in cash on being identified by any of the learned counsel appearing for her in this Court. No withdrawal shall be permitted except with leave of the Commissioner. For permitting such withdrawal Commissioner has to be satisfied about urgency of need for withdrawal and the amount needed. The amount in excess of Rs. 62,000/- shall be refunded to the insurer. The appeal is allowed to the extent indicated above. No costs. .