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2013 DIGILAW 1312 (PNJ)

KAPTAN SINGH v. RAJINDER SINGH

2013-09-26

RAKESH GARG

body2013
JUDGMENT : Rakesh Garg, J. C.M. No. 912-CII of 2012 1. For the reasons mentioned in the application, which is supported by an affidavit of appellant No. 1, delay of 49 days in filing the appeal is condoned. The application stands disposed of. F.A.O. No. 189 of 2012 (O & M) The facts emerging out from the impugned order are that one Ragan Singh son of the appellants suffered injuries in a road accident which took place on 10.07.2010 while driving car bearing registration No. HR-10N-7000 during the course of his employment under respondent No. 1, The said car was duly insured with respondent No. 2. Upon notice, respondent No. 1 admitted the contents of employment, salary, accident and the injuries to the applicant/Ragan Singh and stated that claim/compensation, if any, will be payable by respondent No. 2 as the car was fully insured. In its written statement, respondent No. 2 denied that the injured Ragan Singh had suffered any permanent disability. It was further claimed that the claimant was not under employment with respondent No. 1 and the driving licence issued to him, if any, is not valid and further no information was given by the claimant regarding injuries sustained in the alleged accident and it was prayed that the claim petition be dismissed. 2. After considering the pleadings and evidence on record, the Commissioner, Circle-I, Sonepat under the Workmen's Compensation Act, 1923 held that the applicant Ragan Singh sustained injuries on 10.07.2010 while driving car No. HR-10N-7000 during the course of his employment under Respondent No. 1, and therefore he was entitled to the compensation as per the provisions of the Act and respondent No. 2 was liable to indemnify as per the contract of insurance. 3. The Commissioner further determined the amount of compensation payable to the injured Ragan Singh at Rs. 3,36,000. While determining the aforesaid compensation, the Commissioner observed as under: The applicant has stated his age as 20 years in the claim petition. On the medical treatment record the age of the applicant is also written as 20 years thus, the age 20, years being un-rebutted, is hereby accepted as correct and considered for the purpose of calculation. The applicant has stated his wages Rs. 5000/- per month plus Rs. 60/- as diet money. The respondent No. 2 could not rebut the rate of wages of the applicant. The applicant has stated his wages Rs. 5000/- per month plus Rs. 60/- as diet money. The respondent No. 2 could not rebut the rate of wages of the applicant. The applicant has passed the secondary school examination as proved from the Ex. P-9. Thus, the wages of applicant is hereby considered only Rs. 5000/- per month and the same is hereby considered for the purpose of calculation. From the disability certificate Ex. P-4 it is proved that the applicant has suffered 75% temporary disablement and his disability is likely to improve. Thus, the loss of earning capacity of the applicant is considered to the extent of 50% only in these circumstances. On the strength of these facts i.e. age 20 years and wages Rs. 5000/- and taking into consideration the relevant factor at the age of 20 years, taking 60% of admissible wages and taking his disability to the extent of 50%, amount of compensation payable to the applicant comes to Rs. 3,36,000/- (224 x 5000 x 60% x 50%) which is awarded in favour of the applicant. The applicant could not prove the medical treatment expenses bills and visit to doctors by calling the concerned witness in the witness box, thus, the applicant is not entitled for any amount under this head. 4. The instant appeal has been filed by the appellants i.e. parents of injured Ragan Singh (who died on 20.08.2011) after pronouncement of the impugned order seeking enhancement of the compensation, on the ground that Ragan Singh had died due to the injuries sustained by him in the accident which took place on 10.07.2010, by placing on record copies of medical reports to support the contention, that death of Ragan Singh has occurred due to the injuries aggravated in the accident. Thus, the documents have been sought to be placed on record by moving applications viz. C.M. Nos. 913-CII & 914-CII of 2012 by way of additional evidence whereas C.M. No. 911-CII of 2012 has been filed on behalf of the appellants seeking permission of the Court to bring them on record as Legal Representatives of Ragan Singh (since deceased). In the said application, it has been stated that Ragan Singh has left behind the appellants and his wife Jyoti as his Legal Representatives. In the said application, it has been stated that Ragan Singh has left behind the appellants and his wife Jyoti as his Legal Representatives. However, it may be noticed that the instant application has been filed only by the appellants therefore it was prayed that their names be brought on record as Legal Representatives of Ragan Singh. It may further be noticed that in the memo of parties attached with the appeal, the appellants have arrayed Jyoti, widow of Ragan Singh, as proforma respondent No. 3. 5. At this stage, it may also be noticed that on 18.09.2013, the case came up for hearing. Noticing the provisions of Section 2(d) of the Employees' Compensation Act, 1923 (hereinafter referred to as, 'the Act') and the fact that wife of injured Ragan Singh was alive who has been shown as respondent No. 3 in the memo of parties, on a query put to the counsel with regard to maintainability of the instant appeal on behalf of the appellants, who are the parents of injured. Ragan Singh (since deceased), counsel for the appellants sought a short adjournment to enable him to search law and the case was ordered to be listed on 26.09.2013. 6. In the meantime, the appellants have filed another application bearing C.M. No. 19664-CII of 2013 for striking off the name of proforma respondent No. 3 Jyoti from the array of parties on the ground that she has remarried and is living in her separate matrimonial home; further making a prayer to allow them to place on record amended memo of parties as per C.M. No. 19665-CII of 2013. The appellants also filed C.M. No. 19666-CII of 2013 for permitting them to withdraw C.M. No. 911-CII of 2012, which was filed to bring them on record, with liberty to file a fresh application with better particulars. Not only this, the appellants have filed one more application bearing C.M. No. 19674-CII of 2013 wherein a prayer has been made to implead only the appellants as Legal Representatives of Ragan Singh (since deceased). 7. Not only this, the appellants have filed one more application bearing C.M. No. 19674-CII of 2013 wherein a prayer has been made to implead only the appellants as Legal Representatives of Ragan Singh (since deceased). 7. By moving these applications, the appellants have in fact made an effort to plead before this Court that they are the only Legal Representatives/claimants/dependants of injured Ragan Singh (since deceased) to claim enhancement of compensation on account of his death due to the aggravation of injuries suffered by him, and that Jyoti (widow of injured Ragan Singh) has no right to claim compensation being LR/dependant of deceased Ragan Singh on account of the alleged fact that she has remarried. 8. At this stage, it is relevant to refer to the provisions of Section 2(d) of the Act, which read thus : 2(d) 'dependant' means any of the following relatives of deceased employee, 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 employee 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 employee 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 parental grandparent if no parent of the employee is alive; [Explanation:- For the purposes of sub-clause (ii) and items (f) and (g) of sub-clause (iii), references to a son, daughter or child include an adopted son, daughter or child respectively.] 9. A perusal of the aforesaid provisions would show that a widow is indisputably a dependant of a deceased workman and parents other than a widowed mother can claim themselves to be dependants of a deceased workman in case they are dependant on the earnings of the workman. A perusal of the aforesaid provisions would show that a widow is indisputably a dependant of a deceased workman and parents other than a widowed mother can claim themselves to be dependants of a deceased workman in case they are dependant on the earnings of the workman. However, the aforesaid definition does not show any provision which disentitles a widow from claiming compensation of her deceased husband on account of the fact that she has remarried. 10. It may further be noticed that though it has been stated in the applications filed Wore this Court that the widow of Ragan Singh (since deceased) has remarried and is residing at an address not known to them, yet no details have been given of the alleged marriage of Jyoti, who allegedly is the widow of Ragan Singh. It is unbelievable that the appellants know about the remarriage of said Jyoti but they do not know about her whereabouts and the details about her marriage. Though the appellants are alleging that she has remarried but they are not coming with the date on which the said marriage took place. In the absence of such facts, it is difficult to hold that the appellants alone are entitled to claim compensation to the exclusion of Jyoti, widow of Ragan Singh. 11. It may further be noticed that as per the definition of 'dependant' as provided under the Act, parents can be held to be dependant only if they are dependant upon the earnings of the deceased workman. In the instant case, nothing has been brought on record to suggest that appellants were dependant upon the earnings of the deceased. What to talk of any material placed on record to support the aforesaid fact, even it has not been pleaded in this appeal or the applications filed before this Court that the applicants/appellants were dependant upon the earnings of Ragan Singh (since deceased). 12. It may further be noticed that the evidence sought to be produced before this Court vide Annexure A-2 no doubt suggests that Ragan Singh was suffering due to the alleged injuries but there is nothing on record to suggest that the cause of death of Ragan Singh was due to aggravation of the aforesaid injuries. No such medical opinion has been placed on record before this Court. No such medical opinion has been placed on record before this Court. In any case, this Court finds that the appeal filed on behalf of the appellants alone to the exclusion of widow of the deceased Ragan Singh, that too without establishing the fact that she has remarried, is not maintainable. In view thereof, this appeal is dismissed holding that the same is not maintainable.