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2016 DIGILAW 1150 (RAJ)

Ramaram v. Narbada

2016-08-09

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This appeal under Section 30(c) of the Workmen's Compensation Act, 1923 ('the Act') has been filed by the appellant aggrieved against the order dated 15.10.2003 passed by the Commissioner, Workmen Compensation, Jalore ('the Commissioner'), whereby the application seeking distribution of the amount of compensation has been decided. 2. An application was filed by Smt. Narbada seeking compensation for death of her husband Rajkumar S/o. Ramaram on 09.08.2000 while working as driver with the employer Smt. Sukhi Devi. During the pendency of the application before the Commissioner, an application dated 13.11.2002 was filed by Ramaram, father of the deceased, inter alia, seeking impleadment as applicant. The application was opposed by claimant Smt. Narbada and by order dated 13.01.2003, the Commissioner rejected the application on noticing that Ramaram had filed application for compensation being 35 of 2001 before the Motor Accident Claims Tribunal, Jalore seeking compensation for death of Rajkumar. 3. After the evidence was led by the parties, the Commissioner by its judgment dated 07.07.2003 allowed the application and ordered for payment of compensation to the tune of Rs. 2,15,280/- along with interest @ 12% per annum w.e.f. 09.08.2000 and further imposed penalty of Rs. 2,500/-.The Insurance Company was held liable to make payment of the amount of compensation and interest. 4. When the amount of award was deposited by the Insurance Company, an application was filed by Ramaram on his own behalf and on behalf of his wife Shanta @ Shanti, Ratanlal, Dinesh, Ramesh and Usha, his sons and daughter with the averments before the Commissioner that Smt. Narbada had remarried 3-4 months back, at the time when Rajkumar died, Smt. Narbada was pregnant and gave birth to a daughter, which was aged about three years; it was claimed that the applicants were dependant on the deceased Rajkumar and, therefore, amount be disbursed to them. 5. The application was opposed by Smt. Narbada after the notices were issued to her and minor daughter Tulsi. 6. Statements of claimants regarding the distribution were recorded and the Commissioner by its order dated 15.10.2003 awarded the compensation as under:- Smt. Narbada Rs. 1,05,030/- Kumari Tulsi Rs. 1,20,000/- Shri Ramaram Rs. 10,000/- Smt. Shanta @ Shanti Rs. 15,000/- Ramesh Rs. 8,000/- Dinesh Rs. 7,000/- Ratanlal Rs. 5,000/- Ms. Usha Rs. 15,000/- 7. Feeling aggrieved, the present appeal has been filed by Ramaram along with wife, sons and daughter. 8. 1,05,030/- Kumari Tulsi Rs. 1,20,000/- Shri Ramaram Rs. 10,000/- Smt. Shanta @ Shanti Rs. 15,000/- Ramesh Rs. 8,000/- Dinesh Rs. 7,000/- Ratanlal Rs. 5,000/- Ms. Usha Rs. 15,000/- 7. Feeling aggrieved, the present appeal has been filed by Ramaram along with wife, sons and daughter. 8. It is submitted by learned counsel for the appellant that as Smt. Narbada had re-married, while distributing the amount of compensation no amount could have been awarded to her. It was further submitted that as the child in womb is not included in the definition of dependant, on that count the Commissioner could not have awarded the amount to Kumari Tulsi, the posthumous child of Rajkumar. It was submitted that the definition of dependant only includes a widow and a minor legitimate or adopted son and unmarried legitimate or adopted daughter or a widowed mother and persons, who are wholly or in part dependent on the earnings on the employee at the time of his death, which includes parents, minor brothers or unmarried sisters. It was submitted that the order dated 15.10.2003 passed by the Commissioner deserves to be modified, the respondent Smt. Narbada and Kumar Tulsi are not entitled to any compensation and, therefore, the amount be ordered to be awarded to the appellants. 9. Reliance was placed on Regal Sports v. Mohd. Siddique and ors., 1994 ACJ 294. 10. Learned counsel for the respondents submitted that admittedly Smt. Narmada was pregnant at the time of death of Rajkumar and Kumari Tulsi was born posthumously and is a daughter of Rajkumar and is bound to be maintained by Smt. Narbada. In view of the fact that the provision of the Act does not exclude the posthumous child, Kumari Tulsi cannot be deprived of the amount of compensation. It is submitted that merely because Smt. Narbada remarried after four years of death of Rajkumar, she also cannot be deprived of the amount of compensation. Further submissions were made that application was filed by Ramaram seeking custody of Kumari Tulsi, which application was also rejected by the competent court. The child is being maintained by Smt. Narbada only and, therefore, the Commissioner was justified in awarding the compensation to Smt. Narbada irrespective of her remarriage. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. The child is being maintained by Smt. Narbada only and, therefore, the Commissioner was justified in awarding the compensation to Smt. Narbada irrespective of her remarriage. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. Provision of Section 8 of the Act deals with distribution of compensation and provides that after inquiry, the Commissioner can pass orders for distribution of the amount of compensation, which has been determined. 13. In the present case, the objections were raised by father of the deceased Rajkumar regarding the distribution of compensation, however, from the record as noticed hereinbefore the father tried to get impleaded as party to the application seeking compensation, however, the application was rejected on account of filing of application under provisions of Motor Vehicles Act, 1988, wherein Smt. Narbada was not a party. Once the award was passed, the father of the deceased again by way of present application made attempts to share the amount of compensation without disclosing the outcome of the proceedings before the Motor Accident Claims Tribunal. 14. Once the award was passed, the father of the deceased again by way of present application made attempts to share the amount of compensation without disclosing the outcome of the proceedings before the Motor Accident Claims Tribunal. 14. The definition of dependant under Section 2(d) of the Act provides as under:- “2(d) “dependant” means any of the following relatives of deceased (employee), namely:- (i) a widow, a minor (legitimate or adopted) so, 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 paternal grandparent if no parent of the (employee) is alive; (Explanation.- For the purpose 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.)” 15. A bare look at the definition would reveals that the definition contemplates a legitimate or adopted child of the deceased as dependant. The rights of a posthumous child, have been recognised under provision of Section 20 of the Hindu Succession Act, 1956, which provides as under:- “20. Right of child in womb.- A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she has been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.” 16. The above provision places a child in womb at the time of death of an intestate at par with a child, who is available at the time of death of the intestate and, therefore, in those circumstances, it cannot be said that a child in womb at the time of death of a person, for whose death, the application for compensation is filed would not have any right to seek compensation, get impleaded as party to the application and/or be a part of the distribution post the award is passed. 17. In view thereof, the objection raised by the appellant regarding right of Kumar Tulsi has no substance. 18. So far as the fact of remarriage and its effect on the right to claim compensation and/or the distribution is concerned, the reliance placed on the judgment in the case of Regal Sports (supra) is misplaced, inasmuch as, in the said case the Court only noticed the fact of remarriage for coming to the conclusion that the amount of award was adequate/sufficient and, therefore, no advantage can be taken of the said judgment. 19. This Court in Vimla Devi and ors. v. Chaman and ors., 1992 ACJ 1048 and Parasmal Oswal and ors. v. Gurucharan Singh and ors., 2006 (3) RLW 2515 has held that remarriage of the widow, cannot have any effect on the dependency and/or compensation. 20. In view thereof, the plea raised regarding the award of compensation being distributed to Smt. Narbada also has no substance. In view of the above discussion, there is no substance in the appeal, the same is, therefore, dismissed.