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2013 DIGILAW 325 (CHH)

Krishna Vishwakarma v. C. S. P. D. C. L.

2013-11-11

SANJAY K.AGRAWAL

body2013
ORDER Sanjay K. Agrawal, J. 1. This is an appeal by claimant No. 1 Smt. Krishna Vishwakarma, widow of deceased Rajkumar Vishwakarma, under Section 30 of the Employee's Compensation Act, 1923 (henceforth 'the Act, 1923') challenging the order dated 13-07-2012 passed by the Commissioner under the Act, 1923, Labour Court, Korba (henceforth 'the Commissioner') in Case No. 27/E.C. Act/2012/Fatal/Deposit apportioning compensation among the dependants of the deceased under Section 8 of the Act, 1923. The facts, as projected and necessary for adjudication of the appeal, are thus: (1.1) Rajkumar Vishwakarma, who was employed under respondent No. 1/Chhattisgarh State Power Distribution Company Limited (CSPDCL) as a Line Attendant Grade-III, died in an accident arising out of and during the course of employment on 05-03-2011. On the date of accident, the deceased was aged about 32 years and was earning Rs. 14,963/- per month. The deceased died leaving behind him his widow Krishna Vishwakarma (claimant No. 1), mother Prasunkali (claimant No. 2) and sister Pushpa Vishwakarma (claimant No. 3). Under the provisions of Section 8 of the Act, 1923, respondent No. 1/CSPDCL deposited a sum of Rs.8,31,920/- before the Commissioner for apportionment among the dependants of the deceased. (1.2) The Commissioner, after hearing the parties and going through the evidence on record, by order under paragraph 9 of the impugned order dated 13-07-2012, deducted a sum of Rs.1,000/- out of the deposited sum of Rs.8,31,920/- towards expenditure incurred in publication of notice in newspaper and apportioned the remaining sum of Rs.8,30,920/- under the provisions of Section 8(5) of the Act, 1923, as under: ^^vkfNr dk uke e`r deZpkjh ls fj’rk forfjr dh xbZ izfrdj jkf’k 1. Jherh d`”.kk fo’odekZ] mez yxHkx&29 o”kZ ifr Lo- jktdqekj fo’odekZ is’kk&ukSdjh] fuoklh&lh-,l-bZ-ch- dkWykSuh ,pVhihih] dSyk’k fogkj] edku ua- bZ@452] fo|qr uxj] dksjck] NRrhlx<+ fo/kok 2]00]000@& :I;s nl o”kZ ds fy;s ,Q-Mh- fd;k tk;s ,oa nl o”kZ ds i’pkr~ ewy/ku ,oa C;kt dh jkf’k lfgr iqu% nl o”kZ ds fy;s ,Q-Mh- fd;k tk;sA 2- izlqudyh] mez yxHkx&49 o”kZ] ifr Lo] v;ks/;k izlkn fo’odekZ Ekk=k ¼1½ 1]39]920@& :I;s cpr [kkrk esa tek fd;k tk,A ¼2½ 1]00]000@& :i;s ikap o”kZ ds fy;s ,Q-Mh- fd;k tk,A ¼3½ 1]00]000@& :I;s lkr o”kZ ds fy;s ,Q-Mh- fd;k tk,A ¼4½ 1]00]000@& :i;s nl o”kZ ds fy;s ,Q-Mh- fd;k tk,A 3- dq- iq”ik fo’odekZ mez yxHkx&19 o”kZ] firk Lo- v;ks/;k izlkn fo’odekZ] vkosfndk dz-2 ,oa 3] fuoklh&bafnjk uxj] teuhikyh] ,u-Vh-ih-lh- rglhy&dV?kksjk] ftyk & dksjck] NRrhlx<+ cgu 2]00]000@& :i;s nks o”kz ds fy;s ,Q-Mh- fd;k tk,A ;ksx % 8]30]920@& :i;s ek= IN WORDS : - Eight Lac, Thirty Thousand, Nine Hundred Twenty Only” 2. Shri Jitendra Gupta, learned counsel appearing for appellant/widow of the deceased would submit that the dispute of compensation between the appellant/widow of the deceased and the mother of the deceased is inequitable and that too without giving sufficient importance to the provisions as contained in Section 2(1)(d) of the Act, 1923 defining the phrase "dependant". He would also submit that the appellant/widow of the deceased is also Class-1 heir as provided in the Schedule enacted under Section 8 of the Hindu Succession Act, 1956. Thus, the order of the learned Commissioner deserves to Shri Vikas Pandey, learned counsel appearing for respondents No. 2 and 3/claimants No. 2 and 3 supported the impugned order and opposed the appeal. 4. I have heard and considered the rival submissions and have perused the record of Case No. 27/E.C. Act/2012/Fatal/Deposit. 5. The appeal has been admitted be modified. 3. Per contra, Shri Manish Nigam, learned counsel appearing for respondent No. 1/employer and on the following substantial question of law: Whether the Commissioner for Employee's Compensation was justified under Section 8(5) of the Employee's Compensation Act, 1923 in allotting only a sum of Rs.2,00,000/- to the appellant/widow of the deceased? 6. Section 2(1)(d) of the Act, 1923 defines the "dependant". Section 2(1)(d) of the Act, 1923 reads thus: 2. 6. Section 2(1)(d) of the Act, 1923 defines the "dependant". Section 2(1)(d) of the Act, 1923 reads thus: 2. Definitions.--(1) In this Act, unless there is anything repugnant in the subject or context,-- xxxxx xxxxx xxxxx (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, xxxxx xxxxx xxxxx 7. A bare perusal of the above provisions of Section 2(1)(d) of the Act, 1923 would show that the widow and the widowed mother of the deceased both are included within the meaning of dependants. However, unmarried sister, if wholly or in part dependant on the earnings of the employee at the time of death is also a dependant within the meaning of Section 2(1)(d) of the Act, 1923. 8. Section 8(5) of the Act, 1923 provides as under: 8. Distribution of compensation.-- xxxxx xxxxx xxxxx (5) Compensation deposited in respect of a deceased employee shall, subject to any deduction made under sub-section (4), be apportioned among the dependants of the deceased employee or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant. 9. A bare perusal of Section 8(5) of the Act, 1923 would show that the compensation deposited in respect of deceased employee shall be apportioned among the dependants of the deceased or any of them in proportion as the Commissioner thinks fit or in the discretion of the Commissioner be allotted to any one dependant. Sub-section (5) of Section 8 of the Act, 1923 confers discretion to the Commissioner to apportion the compensation. 10. In Sharp Vs. Sub-section (5) of Section 8 of the Act, 1923 confers discretion to the Commissioner to apportion the compensation. 10. In Sharp Vs. Wakefield 1891 AC 173, Lord Halsbury discussed the issue of exercise of discretion. He there said: Discretion" means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke case, (1598) 5 Co. Rep 99b, 100a; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. 11. Thus, the discretion of the Commissioner has to be based on sound legal principles and it cannot be arbitrary. 12. In Sk. Jumnan Sk. Amir Vs. Shahajahanbi Suleman 1973 ACJ 383, the High Court of Bombay observed thus: 3. ........ It requires to be noticed that provision for payment of compensation to the dependents is of the nature of an indemnity for the amount of maintenance which a deceased person might have provided to the dependents if he had not suffered death in consequence of employment injury. The question which under the circumstances arises before the Commissioner when allocating and/or distributing the compensation fixed would be to ascertain the amount of maintenance that would have been paid to the concerned parties by the deceased workman. In that connection, the relevant facts would be (i) the status of the family of the deceased and his dependents; (ii) in the case of a widow the possibility of a remarriage in which case the workman would altogether cease to pay any money (iii) the circumstances of the parents and the minor brothers and to what extent they were provided maintenance by the deceased during his lifetime. ........ 13. In the instant case, Rajkumar Vishwakarma died on 05-03-2011 leaving behind him his widow Krishna Vishwakarma (claimant No. 1), mother Prasunkali (claimant No. 2) and sister Pushpa Vishwakarma (claimant No. 3). As provided in the Schedule enacted under Section 8 of the Hindu Succession Act, 1956, the widow and the mother are Class-1 heir and the sister is Class-II heir. In the instant case, Rajkumar Vishwakarma died on 05-03-2011 leaving behind him his widow Krishna Vishwakarma (claimant No. 1), mother Prasunkali (claimant No. 2) and sister Pushpa Vishwakarma (claimant No. 3). As provided in the Schedule enacted under Section 8 of the Hindu Succession Act, 1956, the widow and the mother are Class-1 heir and the sister is Class-II heir. Apart from this, claimant No. 1/the widow of the deceased has been appointed as an Assistant Grade-III under respondent No. 1/CSPDCL on compassionate ground and she has also received a sum of Rs.1,93,000/- from respondent No. 1 under the head D.C.R.C. 14. Now, I proceed to consider the apportionment made by the Commissioner among the aforesaid three dependants of the deceased. I find that though the mother and the widow of the deceased are Class-1 heirs, the mother of the deceased has been allotted a sum of Rs.4,30,920/- and the widow of the deceased has been allotted only the sum of Rs.2,00,000/-. Since both, the mother and the widow of the deceased are Class-1 heirs and they were equally dependant upon the deceased, therefore, the Commissioner ought to have allotted equal amount to them. The total amount allotted to the two Class-1 heirs is Rs.4,30,920/- + Rs.2,00,000/- = Rs.6,30,920/-. On the ground of parity of both being Class-1 heirs, the mother and the widow of the deceased shall be entitled to have equal share in the amount of Rs.6,30,920/-. Accordingly, out of the sum of Rs.6,30,920/-, the mother of the deceased is allotted a sum of Rs.3,15,460/- and the widow of the deceased/the appellant herein is also allotted the equal sum of Rs.3,15,460/-. Thus, the Commissioner has committed illegality in apportioning the compensation in exercise of the jurisdiction under Section 8(5) of the Act, 1923. The substantial question of law is, thus, answered in negative and in favour of the appellant. In the result, the appeal is allowed. The impugned order is modified I to the extent indicated above and rest thereof shall remain intact.