Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 132 (MP)

Vilas S/o Narayan Mahajan v. Hussainbee W/o Salim

2012-01-31

N.K.MODY

body2012
Judgment The appeal was admitted for final hearing on the following substantial question of law:- “Whether major younger brother of the deceased is entitled to pursue the claim petition for compensation under the provisions of Workmen's Compensation Act ?” Being aggrieved by the order dated 04/04/06 passed by Commissioner for Workmen's Compensation Labour Court Indore in Case No.1/2005 W.C.F. whereby the claim petition filed by the appellant for compensation on account of death of his brother Dinesh was dismissed, the present appeal has been filed. Short facts of the case are that appellant filed a claim petition before the learned court below alleging that Dinesh was the elder brother of the appellant and was employed on a auto rickshaw bearing No.CII-1028 as driver of respondent NO.1 which was insured with respondent No.2. It was alleged that deceased Dinesh was getting salary of Rs.4000/- per month from respondent NO.1 in addition to allowances. It was alleged that on 29/6/2004, in a road accident Dinesh died during course of his employment. It was further alleged that appellant is handicapped and was dependent on the deceased. It was prayed that claim petition filed by the appellant be allowed and compensation be awarded. The claim petition was contested by the respondent No.1, however it was admitted that deceased was under the employment of respondent No.1 at the time of accident. The claim petition was also contested by respondent NO.2 on various grounds including on the ground that claim petition itself is not maintainable as appellant is not covered under the definition of dependent as enshrined under section 2(1)(d) of the Workmen's Compensation Act. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned court below dismissed the claim petition filed by the appellant holding that since appellant is not covered under the definition of dependent laid down under the Act, therefore the claim petition stands dismissed, against which the present appeal has been filed. Learned counsel for appellant submits that impugned order passed by learned court below is illegal and deserves to be set aside. Learned counsel submits that appellant is younger brother of the deceased and is handicapped which is proved by the medical evidence adduced by the appellant documentary as well as oral. Learned counsel for appellant submits that impugned order passed by learned court below is illegal and deserves to be set aside. Learned counsel submits that appellant is younger brother of the deceased and is handicapped which is proved by the medical evidence adduced by the appellant documentary as well as oral. It is submitted that it is true that major brother is not specifically covered under the definition of dependents laid down u/s 2(1)(d)(iii) of the Act but since the appellant is handicapped and also younger brother and the Act is beneficial legislation therefore same ought to have been interpreted which is favourable to the claimant. For this contention learned counsel placed reliance on a decision in the matter of Gujarat State Road Transport Corporation Vs. Ramanbhai Prabhatbhai, 1987 ACJ(Vol.II) 561 wherein the claim petition was filed for compensation by the brother of a person who was killed in a motor accident, the Hon. Apex Court observed that scheme and objects of Motor Vehicles Act 1939 and Fatal Accidents Act, 1855 and report of Law Commission intended that the expression 'legal representative' in section 110-A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased. Further reliance is placed on a decision in the matter of Mrs. Hafizun Begum Vs. Md. Ikram Heque, 2008(I) DMP 1(SC) wherein Hon. Apex Court had an occasion to consider the scope and ambit of expression “Legal Representative” laid down under the provisions of Motor Vehicles Act and held that “right to file a claim petition to be considered in the light of the right of entitlement of compensation. It was further held that legal Representative is a person who suffers on account of the death of another on account of motor accident and it is not necessary that such a person should be wife or husband or parent or child of the deceased. Further reliance is placed on a decision of this Court in the matter of Abdul Malik & Others Vs. Modern Iron Works (MA. No.1813/03) decided on 25/08/10 wherein the claim petition was filed by the widow and sons of deceased, this Court held that since the claimants are the children of the deceased, therefore, even if they are not financially dependent on the deceased, then too, for number of purposes they were dependent on deceased. Modern Iron Works (MA. No.1813/03) decided on 25/08/10 wherein the claim petition was filed by the widow and sons of deceased, this Court held that since the claimants are the children of the deceased, therefore, even if they are not financially dependent on the deceased, then too, for number of purposes they were dependent on deceased. Learned counsel submits that in the facts and circumstances of the case, the appeal filed by the appellant be allowed and impugned order passed by the learned court below be set aside. Learned counsel for respondent NO.2 submits that claim petition filed by the appellant has been dismissed as appellant is major younger brother of the deceased who is not covered under the definition of dependent laid down under the Workmen's Compensation Act. Learned counsel placed reliance on a decision in the matter of Gopal Synthetics Vs. Workmen's Compensation Commissioner, Kota, 1995 ACJ 908 wherein in claim petition filed under the provisions of Workmen's Compensation Act, Rajasthan High Court held that major brother of the deceased workman is not dependent of the deceased. Further reliance is placed on a decision in the matter of Divisional Manager, New India Assurance Co.Ltd. Vs. Sankar Tarai, 1996 ACJ 579 wherein it was held that elder brother of the deceased workman who is major but was depending on the workman for his living is not a 'dependant' for the purposes of the Act and is not entitled to compensation. Further reliance is placed on a decision in the matter of Mayfield Estate Nallakottah, Nilgiris Vs. Krishnan, 1984 ACJ 295 while dealing with the definition of dependent, Madras High Court held that “any person other than a dependant cannot file a petition under the Workmen's Compensation Act.” On the strength of aforesaid position of law, learned counsel submits that since the claim petition is filed under the provisions of Workmen's Compensation Act, therefore it is only the dependant defined u/s 2(1)(d) of the Act who can file the claim petition. It is submitted that since the appellant is not covered under the Act therefore learned court below committed error in dismissing the claim petition. It is submitted that appeal be dismissed. Section 2(1)(d) of Workmen's Compensation Act lays down the definition of 'dependent'. It is submitted that since the appellant is not covered under the Act therefore learned court below committed error in dismissing the claim petition. It is submitted that appeal be dismissed. Section 2(1)(d) of Workmen's Compensation Act lays down the definition of 'dependent'. As per Clause (iii) of Sub-Section (d) minor brother or an unmarried sister or a widowed sister if a minor is dependent if wholly or in part dependent on the earnings of the workman at the time of his death. Undisputedly appellant is the younger brother of the deceased but not minor. The age of the appellant was 40 years at the relevant time. To prove the case appellant has examined Satyanarayan Yadav who has not stated that the appellant is handicap. Appellant has examined himself and has stated that he is handicap right from his childhood. In his evidence it has come that he was married in the year 1982 and was also blessed with three children. He lost his wife in the year 1987, while the birth of the children took place in the year 1984, 1985 and 1987. He has further stated that the age of his son is 21 years. Ex.P/12 is the certificate issued by Dr. NS. Sharda who has stated that the appellant was operated before one year of issuance of certificate for fracture of knee joint and tibia and fibula. There is nothing on record to demonstrate that the appellant is handicap right from his childhood. No documentary evidence of treatment has been filed. It is true that the word 'dependent' has to be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased. The word 'dependent' as defined under the Workmen's Compensation Act takes care of minor brother, unmarried sister and widowed sister. So far as the law laid down in the matter of Gujarat State Road Transport Corporation & Mrs. Hafizun Begum (Supra) are concerned, in both the cases the claim petition was filed under the provisions of Motor Vehicles Act and not on Workmen's Compensation Act. So far as law laid down in the matter of Abdul Malik (Supra) is concerned, the facts of this case are quite different. In this case claim petition was filed by widow and sons, while in the present case claim is filed by major brother. So far as law laid down in the matter of Abdul Malik (Supra) is concerned, the facts of this case are quite different. In this case claim petition was filed by widow and sons, while in the present case claim is filed by major brother. In the present case undoubtedly appellant is younger brother but not minor. Inspite of this the case of the appellant could have been considered if sufficient evidence would have been on record to demonstrate that the appellant is handicap and was financially dependent, by giving wider meaning of the word 'dependent' but in absence of any evidence on that account and keeping in view that the appellant was married and was blessed with three children and his son is major, neither it can be presumed that the appellant is handicap nor that appellant was dependent on the deceased. In view of this, this Court is of the view that the major younger brother of the deceased is not entitled to prosecute the claim petition for compensation under the provisions of Workmen's Compensation Act. In view of this, appeal filed by the appellant has no merits and the same stands dismissed. No order as to costs.