Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 889 (GAU)

Oriental Insurance Co. Ltd. v. C. Vanhlira & Anr.

2010-11-25

C.R.SARMA

body2010
C. R. Sarma, J.;- By this appeal, filed under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter called 'the Act'), the judgment and award, dated 20.08.2009, passed by the learned Commissioner, Workmen's Compensation, Aizawl, in W.C. Case No. 04 of 2007, has been challenged. 2. One Rochharliana, S/O. Thangliana (L) (hereinafter called 'the deceased'), was the younger brother of the claimant-respondent No. 1. The said deceased was working as a driver in respect of a Bolero vehicle, bearing Registration No. MZ-01/B-9120. While driving the said Bolero vehicle, under the employment of Sri Collen Lalsangpuii, the deceased met with an accident, on 23.05.2006 and as a result of which, he succumbed to the injuries, sustained by him. According to the claimant-respondent, the deceased was earning Rs. 4,000/- as his monthly salary and that after the death of their parents, the deceased, who was unmarried, was living with the claimant-respondent and his family, supporting the claimant by paying him Rs. 3,000/- per month. According to the claimant, he and his family members were dependant on the income of his said deceased. In view of the death of the deceased, in the said vehicular accident, the claimant filed a claim case before the Commissioner, Workmen's Compensation, Aizawl. The concerned vehicle was insured with the Oriental Insurance Co. Ltd. i.e. the appellant-respondent No. 2. 3. The owner of the vehicle and the insurer, as opposite parties Nos. 1 and 2 respectively, contested the claim, by filing written statements. 4. The owner of the vehicle, by filing a written statement, while admitting the death of the deceased in connection with the said accident, stated that he used to pay the said driver i.e. the deceased, a monthly salary of Rs. 4,000/-. According to the said owner, the vehicle was duly insured with the opposite party No. 2 and as such the said insurer was liable to pay the compensation, if any. 5. The insurer, by filing written statement, raised the question regarding the locus standi of the claimant in filing the claim petition. The opposite party No. 2 further denied that the claimant was a dependant of the deceased. 6. Upon the pleadings of both the parties, the learned Commissioner, Workmen's Compensation, framed the following issues: "1. Whether the applicant is workman within the meaning of the Act? 2. Whether the accident arose out of or in the course of the applicant's employment? 3. 6. Upon the pleadings of both the parties, the learned Commissioner, Workmen's Compensation, framed the following issues: "1. Whether the applicant is workman within the meaning of the Act? 2. Whether the accident arose out of or in the course of the applicant's employment? 3. Whether the amount of compensation claimed is due or any part of that amount? 4. Whether the Opposite party is liable to such compensation?" 7. In support of his claim, the claimant examined himself as PW 1 and the owner of the vehicle as PW 2. 8. Considering the evidence on record, the learned Commissioner, Workmen's Compensation, came to the finding that the deceased, who used to earn Rs. 4,000/- as a driver, died in connection with a vehicular accident, involving the offending vehicle, which was insured with the opposite party No. 2 and that the claimant, as a dependant, was entitled to claim compensation. Accordingly, the learned Commissioner, Workmen's Compensation, quantified the compensation at Rs. 3,94,120/- and directed the insurer to pay the said compensation with interest thereon @ 9% per annum. 9. Being aggrieved by the said judgment and award, the insurer as appellant, has came up with this appeal on the ground, amongst others, that the claimant being the elder brother and a major, was not entitled to claim compensation, under the provisions of the Act. 10. I have heard Mr. Lalremtluanga, learned counsel, appearing for the appellant-Oriental Insurance Co. Ltd. and Mr. Lallawmzuala Sailo, learned counsel, appearing for the claimant-respondent No. 1. 11. The learned counsel, appearing on behalf of the appellant, drawing attention of this Court to the provisions of Section 2(1)(d) of the Act, has submitted, that the elder brother i.e. the claimant, who was a major, is not covered by the definition 'dependant' and as such the learned Commissioner committed gross error and illegality by granting the award in favour of the said brother of the deceased. In support of his contention, the learned counsel, has relied on the decision rendered by a Division Bench of this Court, in the case of National Insurance Company Ltd. Vs. Rana Dev Sutradhar, reported in 2007 (1) GLT1004. 12. In support of his contention, the learned counsel, has relied on the decision rendered by a Division Bench of this Court, in the case of National Insurance Company Ltd. Vs. Rana Dev Sutradhar, reported in 2007 (1) GLT1004. 12. On the other hand, the learned counsel, appearing on behalf of the claimant-respondent No. 1, referring to the evidence on record, has submitted, that after the death of their parents, the claimant and the deceased used to live together and that the claimant and his family members were dependant on the income of the deceased.lt is, therefore, submitted that the learned Commissioner, Workmen's Compensation, committed no error by granting the award in favour of the claimant, who was dependant on the income of the deceased. 13. In the present case, there is no dispute regarding the income and the death of the deceased, in connection with the vehicular accident, involving the vehicle, insured by the appellant. The only dispute arose in this case, is as to whether the claimant was entitled to claim compensation and whether the learned Commissioner, Workmen's Compensation, was correct in granting the award in favour of the said brother of the deceased. 14. At the time of admission of this appeal, no substantial question of law was formulated, as required under the proviso to Section 30 of the Act. Therefore, considering the pleadings and having heard the learned counsel, appearing for both the parties, the following substantial question is framed for disposal of this appeal. "Whether the respondent-claimant, who is the brother (a major) of the deceased workman, could be treated as 'dependant' under the provision of the Workmen's Compensation Act, 1923 and if he was entitled to claim compensation as dependant of his brother?" 15. There is no doubt that the parents of the deceased pre-deceased him. Admittedly, the deceased left behind his elder brother i.e. the claimant as well as the wife and children of the said elder brother, as his close relatives. The deceased died unmarried. The Workmen's Compensation Act, 1923, defines 'dependant' in Section 2(1)(d), which reads as follows:- "2. Definitions.- (1)........................ There is no doubt that the parents of the deceased pre-deceased him. Admittedly, the deceased left behind his elder brother i.e. the claimant as well as the wife and children of the said elder brother, as his close relatives. The deceased died unmarried. The Workmen's Compensation Act, 1923, defines 'dependant' in Section 2(1)(d), which reads as follows:- "2. Definitions.- (1)........................ (d) "dependant" means any of the following relatives of a deceased workman, namely:- (i) a widow, a minor (legitimate or adopted) son, an unmarried (legitimate or adopted) 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 dependant on 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 or adopted) if married and a minor or 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)" 16. The said definition of dependant' does not include the 'elder brother', who is a major. There is no dispute that the claimant-respondent No. 1 is a major and he is the elder brother of the deceased. Therefore, he can't be treated as a 'dependant' under the provision of the Act, for claiming compensation on the death of the deceased, who was the younger brother of the said claimant. 17. Though the learned counsel, appearing for the claimant-respondent No. 1, has strenuously argued that the claimant, his wife and children being dependant on the income of the said deceased brother, is entitled to get the compensation, in view of the said statutory provision, a brother, who is a major, cannot be held to be entitled to claim compensation under the Act. Therefore, in view of the said statutory restriction regarding entitlement, I find no force in the contention of the learned counsel, appearing for the claimant-respondent No. 1. Therefore, in view of the said statutory restriction regarding entitlement, I find no force in the contention of the learned counsel, appearing for the claimant-respondent No. 1. Accordingly, as the claimant cannot be treated as 'dependant' within the meaning of Section 2(1)(d) of the Act, the learned Commissioner committed error of law in awarding the compensation in favour of the claimant. 18. In the case of National Insurance Company Ltd. (supra), a Division Bench of this Court, referring to the Section 2(1)(d) of the Act, held that a brother can't be treated as dependant. 19. In view of the above, I have no hesitation in holding that the claimant, being the brother (major) of the deceased, was not entitled to claim compensation and, as such, the substantial question of law is decided in negative, 20. In the result, the appeal is allowed. The judgment and award, dated 20.08.2009. passed by the learned Commissioner, Workmen's Compensation, Aizawl, in W.C. Case No. 04 of 2007, is hereby set aside and quashed. No order as to cost. 21. The Registry shall return the Lower Court Records along with a copy of this judgment and order, to the learned trial Court.