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Rajasthan High Court · body

2003 DIGILAW 594 (RAJ)

State of Rajasthan v. Kesu Lal

2003-04-22

O.P.BISHNOI, RAJESH BALIA

body2003
Judgment Rajesh Balia, J.-Having heard learned counsel for the appellant and perused the application under Section 5 of the Limitation Act, we find that no cause much less sufficient cause has been shown by the appellant for not filing the appeal within limitation. We have also heard the learned counsel for the appellant on merit and found that there is no merit in this appeal. 2. The wife of respondent during the course of employment with the appellant received injury as a result of falling of a stone on her head under which she was crushed and thereafter, she died. The compensation claim under Workmen’s Compensation Act was filed by her husband the respondent. The Workmen’s Compensation Commissioner determined the amount of compensation payable to husband and two children of deceased, on admitted facts that Smt. Manaki was employed @ Rs. 32/-per day and was so employed at the time of accident. 3. TheCommissioner also found that it has come on record that the deceased had one son Varda and daughter Shanti, who have not been impleaded in the claim petition. The learned Commissioner after taking into account the dependency of son Varda and daughter Shanti issued direction to make distribution of the compensation under Section 8 of the Act after the amount of compensation is deposited with it. 4. Though, the plea of negligence on the part of employee was taken for denying its liability by the employer, but was not accepted by the Workmen’s Compensation Commissioner. 5. With these facts, the compensation of Rs. 1,29,136/-was determined with interest @ 12% from the date of order. The award was made on August 20, 1999, which was challenged by way of Misc. Appeal No. 831/1999 by the appellant. 6. The appeal has been dismissed by the learned single Judge. The learned single Judge found that none of the grounds available under Section 3 for avoiding liability under the Act, were pleaded and proved by the employer and therefore, the liability of the employer to pay compensation on account of injury caused to the employee during the course of employment is absolute and the same cannot be avoided. The question of negligence in discharge of duties was found to be not relevant for the purpose of denying compensation to the respondent. 7. The question of negligence in discharge of duties was found to be not relevant for the purpose of denying compensation to the respondent. 7. Before us the only contention raised by the learned counsel for the appellant was that there is no finding recorded by the Workmen’s Compensation Commissioner about the dependency of her husband and two children. The fact has come on record that deceased was 32 years old and had two children, obviously two children could be minors only. 8. Section 3 read with Section 4-A of the Workmen’s Compensation Act, 1923 creates an absolute liability of the employer to compensate the injured workman, who has suffered the injury on account of accident arising out of and during the course of employment. The appellant cannot succeed in avoiding liability in present case on facts also. The liability under Section 3 of Workmen’s Compensation Act is towards the injured workman and ex hypothesi stands determined at the time of accident. On such ex-hypothesi determination of liability, it becomes a debt payable by the employer to injured workman. The corresponding right vests in the workman to receive such compensation. Such debt of the employer, which he owes to the employee in case of death of the employee ordinarily vests in his heirs and becomes payable to the heirs. That being the position, merely on the ground of dependency, the employer cannot avoid the liability to pay the compensation to the workman for injury, which has been caused to such workman due to accident arising out of and during the course of employment and such injury has resulted in death of the workman. 9. It is to be seen that primary liability to pay compensation is to compensate the workman for injury suffered by him. If the injury is not fatal the question of dependency is wholly irrelevant. If such injury is fatal, the principle of; dependency for the purpose of creating liability cannot be invoked inasmuch as that will be putting the workman who suffers grievous injury resulting in death at a worse position than who suffers lesser injuries. That obviously cannot be the purport of the beneficial legislation like the Workmen’s Compensation Act. 10. If such injury is fatal, the principle of; dependency for the purpose of creating liability cannot be invoked inasmuch as that will be putting the workman who suffers grievous injury resulting in death at a worse position than who suffers lesser injuries. That obviously cannot be the purport of the beneficial legislation like the Workmen’s Compensation Act. 10. It is further to be noticed that under no provision of the Act liability of employer to pay compensation to workman or his heirs is, pre-conditioned with dependency of the claimant of such compensation on the workman. The question of dependency can only come to force in determining the priority and apportionment for payment of compensation, in case of death. 11. In this connection ratio of decision in Pratap Narain Singh Deo vs. Srinivas Sabata & Anr. AIR 1976 SC 222 : 1976 (1) SCC 289 : 1976-I-LLJ-235 maybe noticed considering the question as to when the compensation under Section 3 becomes payable for the purposes of Section 4-A(i) of the Act of 1923. Almost all the Courts in our country are unanimous on the principle that compensation falls due as soon as the accident takes place causing death or disablement of the workman. There is no reason to postpone the accrual of this right to future date. 12. TheRajasthan High Court in Ramlal vs. Regional Manager, Food Corporation of India, Jaipur 1981 RLW 116 has said after considering the scheme of Sections 3, 4 and 4-A: “Thus the amount of compensation is to be calculated in accordance with the provisions contained in Section 4 and the liability for compensation arises under Section 3, when personal injury is caused to a workman by accident arising out of and in the course of his employment. Thus, it can be said that the compensation under Section 4 falls due when liability for compensation arises under Section 3 and compensation falls due when a personal injury is caused to a workman”. 13. Like view was expressed by Apex Court in Pratap Narain Singh Deo vs. Shrinivas Sabata & Anr. (supra) 1976-I-LLJ-235 at p. 237: “7. Thus, it can be said that the compensation under Section 4 falls due when liability for compensation arises under Section 3 and compensation falls due when a personal injury is caused to a workman”. 13. Like view was expressed by Apex Court in Pratap Narain Singh Deo vs. Shrinivas Sabata & Anr. (supra) 1976-I-LLJ-235 at p. 237: “7. Section 3 of the Act deals with the employer’s liability for compensation.--Sub-section (1) of that Section provides that the employer shall be liable to pay compensation if “personal injury is caused to a workman by accident arising out of and in the course of his employment “ The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioner’s order dated May 6, 1969 under Section 19. What the Section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of an agreement, he settled by the Commissioner. There is therefore nothing to justiir the argument that the employer’s liability to pay compensation under Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary. 8. It was the duty of the appellant, under Section 4-A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. 14. On the same principle Bombay High Court in Margarida Gomes & Anr. vs. Mackinnon Makenzie & Co. Pvt. Ltd., Bombay AIR 1968 Bom 328 opined that if the liability is not discharged, it becomes a debt and can be claimed as such in the case of deceased workman by his dependents or heirs as the case may be. The same view was reiterated in Manubhai Kikabhai & Co., Bombay vs. Babajee Rajaram AIR 1970 Bom 267 . 15. The same view was reiterated in Manubhai Kikabhai & Co., Bombay vs. Babajee Rajaram AIR 1970 Bom 267 . 15. Coupled with this in the definition of “workman” under Section 2(n) ‘dependent’ as defined under Section 2(d)(i) has been included. 16. Effect of this provision is that it enables the persons defined as dependents to continue proceedings to claim compensation in case of death of the workman, inasmuch as the dependants as defined under Section 2(d) themselves are to be considered as workman. 17. According to definition of dependent under Clause 2(d)(i) a widow, a minor legitimate or adopted son or unmarried legitimate or adopted daughter or widowed mother, is deemed to be dependent in absolute terms and no further dependency is required to be proved. While defining ‘dependent’ under Section 2(d) of the Act of 1923 a distinction has been made as to categories of relations in recognising them as dependent. Under Sub-clause (i) of Clause (d) are included such relations who are unconditionally presumed to be dependent vis a vis deceased workman, whereas in the other categories included in Clause (ii) or (iii) are considered dependent partially or wholly on proof of such dependency. 18. Allahabad High Court in Union of India vs. Jhansi Ram & Ors. 1991 All U 1038 said: “A glance at the definition would indicate that in so far as a minor son is concerned, he has to be deemed a dependent of the deceased without being obliged to establish that he was actually dependent for his livelihood on the deceased. It is a special definition of the term ‘dependent’ and the legislative intention appears to be that in the case of a minor legitimate son there ought to be a presumption that he was a dependent of deceased parent. Under Section 2(1)(d)(i) mere relationship with the deceased brings the relation falling under that category is sufficient to clothe him with the status of a dependent”. 19. We have noticed above that the age of deceased at the time of death was 32 years and she had two children, who could obviously be minor children only. Their father, the respondent alone, as a father and natural guardian could maintain the claim for compensation. In that view of the matter also the question of dependency does not survive for further consideration on merit. 20. Their father, the respondent alone, as a father and natural guardian could maintain the claim for compensation. In that view of the matter also the question of dependency does not survive for further consideration on merit. 20. We may notice here that this contention is dealt purely for the satisfaction of the Court about validity of the contention of learned counsel for the appellant, though no such contention has been raised before the Workmen’s Compensation Commissioner or before the learned single Judge and such contention could not have been raised by the learned counsel as a matter of right for the first time, which pertains to the question of fact. 21. Accordingly, the appeal as well as application under Section 5 of the Limitation Act is dismissed.