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Himachal Pradesh High Court · body

2016 DIGILAW 428 (HP)

Bano Devi v. Rashilu Devi

2016-04-06

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. In this appeal filed under Section 30 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as the Act), petitioner has assailed the impugned order dated 07.08.2007, passed by Commissioner under the Workmen’s Compensation Act, 1923, Sundernagar, District Mandi, H.P., in File No.2, titled as Smt. Rashilu Devi Versus Secretary, Self Help Group Bhaterh & another. 2. Appeal stands admitted on the following substantial questions of law:- 1. Whether the learned Commissioner could have rejected the application on the ground that the petitioner was not the claimant though it was duly proved that she was a dependent of the deceased workman at the relevant time being his wife? 2. Whether the learned Commissioner erred in concluding that it could not exercise powers for apportioning the compensation under the Workmen Compensation Act, particularly, once the petitioner was proved to be a dependent? 3. The issue which arises for consideration in the present appeal is as to whether in the absence of lodging of any claim, a widow of the deceased employee, only on account of her subsequent remarriage, is precluded from receiving compensation so determined by the Commissioner (Workmen’s Compensation), in a petition filed by another dependant-her mother in law. 4. Certain facts are not in dispute. Jagdish Chand, an employee of respondent No.2, during the course of his employment, died on 13.11.2002. He died as a result of a motor vehicle accident. It is not in dispute that at the time of his death, his mother Rashilu (respondent No.1 herein) and wife Bano Devi alias Banita (present petitioner), were dependent upon him. It is also not in dispute that Rashilu Devi alone filed an application under Section 22 of the Act, which came to be allowed in terms of order dated 26.06.2006, passed by the Commissioner (Workmen’s Compensation), in File No.2, titled as Smt. Rashilu Devi Versus Secretary, self help group Bhaterh & another. Bano Devi was not a party therein and such order attained finality. It is also not in dispute that Bano Devi remarried on 07.09.2003. It is also not in dispute that subsequently, Rashilu Devi filed an application for release of compensation, in which on her asking, notice came to be issued to Bano Devi. The authority below, rejected her entitlement, in terms of impugned order dated 07.08.2007. It is also not in dispute that Bano Devi remarried on 07.09.2003. It is also not in dispute that subsequently, Rashilu Devi filed an application for release of compensation, in which on her asking, notice came to be issued to Bano Devi. The authority below, rejected her entitlement, in terms of impugned order dated 07.08.2007. The authority found the claim of Bano Devi to have been eclipsed for non filing of claims within a period of two years, so prescribed under Section 10 of the Act. 5. Hence the present appeal, so filed under Section 30 of the Act. 6. For the purposes of adjudication of the controversy in issue, it is appropriate to reproduce the relevant provisions of the Act:- 2. Definitions.-- (1)…. (d) “dependent” 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 dependent 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 dependent on the earnings of the workman at the time of his death,- (a) a widower, (b) a parent other than a widowed mother, … … … (Emphasis supplied) 3. Employer’s liability for compensation.—(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable— (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any[injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to— (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. … … …” (5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury— (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.” (Emphasis supplied) 4. Amount of compensation – (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- (a) Where death results from the injury an amount equal to fifty per cent of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of eighty thousand rupees, whichever is more; Explanation I. – For the purposes of clause (a) and clause (b), “relevant factor”, in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due. … … … Explanation II. – Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only; .. … … (1-A) Notwithstanding anything contained in sub-section (1), while fixing the amount of compensation payable to a workman in respect of an accident occurred outside India, the Commissioner shall taken into account the amount of compensation, if any, awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the workman in accordance with the law of that country. .. .. .. .. .. .. (4) If the injury of the workman results in his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of two thousand and five hundred rupees for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure. (Emphasis supplied) 8. Distribution of compensation.—(1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation: Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation of an amount equal to three months’ wages of such workman and so much of such amount as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer. (2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto. (3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him. (4) On the deposit of any money under sub-section (1), as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made. (5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under sub-section (4), be apportioned among the dependants of the deceased workman 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. (6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto. (7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman. (8) Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case: Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.” (Emphasis supplied) .. … … 10. … … 10. Notice and claim.—(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death: Provided that, where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease: Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work, the period of two years shall be counted from the day the workman gives notice of the disablement to his employer: Provided further that if a workman who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected: Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim— (a) if the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or (b) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at or about the time when it occurred: Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause. (2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed. (3) The State Government may require that any prescribed class of employers shall maintain at their premises at which workmen are employed a notice book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured workman employed on the premises and to any person acting bona fide on his behalf. (4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice book is maintained, by entry in the notice book. (Emphasis supplied) “22. Form of application.—(1) Where an accident occurs in respect of which liability to pay compensation under this Act arises, a claim for such compensation may, subject to the provisions of this Act, be made before the Commissioner. (1-A) Subject to the provisions of sub-section (1), no application for the settlement of any matter by a Commissioner, other than an application by a dependant or dependants for compensation, shall be made unless and until some question has arisen between the parties in connection therewith which they have been unable to settle by agreement. (1-A) Subject to the provisions of sub-section (1), no application for the settlement of any matter by a Commissioner, other than an application by a dependant or dependants for compensation, shall be made unless and until some question has arisen between the parties in connection therewith which they have been unable to settle by agreement. (2) An application to a Commissioner may be made in such form and shall be accompanied by such fee, if any, as may be prescribed, and shall contain, in addition to any particulars which may be prescribed, the following particulars, namely— (a) a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims; (b) in the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer, and, if such notice has not been served or has not been served in due time, the reason for such omission; (c) the names and addresses of the parties; and (d) except in the case of an application by dependants for compensation a concise statement of the matters on which agreement has and of those on which agreement has not been come to. (3) If the applicant is illiterate or for any other reason is unable to furnish the required information in writing, the application shall, if the applicant so desires, be prepared under the direction of the Commissioner.” (Emphasis supplied) 7. Widow whether financially dependant or not is a dependant, for the purpose of the Act as is evidently clear from the definition of the word ‘dependant’ (Section 2(d)). 8. From the conjoint reading of Sections 3 and 4 of the Act, it is clear that in the event of injury/death of an employee resulting by virtue of an accident during the course of employment, duty is cast upon the employer to pay compensation, in the prescribed manner. The employer is under an obligation to deposit the amount, within the stipulated period, with the Commissioner (Workmen’s Compensation). 9. Disbursement of the amount of compensation so deposited with the Commissioner has to be under Section 8 of the Act. 10. In terms of Section 10 of the Act, in the event of claim being preferred within two years from the occurrence of the accident/death, Commissioner (Workmen’s Compensation) is under an obligation to determine the compensation. 9. Disbursement of the amount of compensation so deposited with the Commissioner has to be under Section 8 of the Act. 10. In terms of Section 10 of the Act, in the event of claim being preferred within two years from the occurrence of the accident/death, Commissioner (Workmen’s Compensation) is under an obligation to determine the compensation. Significantly even in the absence of notice, failure explained for a sufficient cause, Commissioner has to determine the same. All that Section 10 postulates is that notice of accident is required to be furnished to the Commissioner. All claims are adjudicated under Chapter III of the Act. All claims with regard to determination of compensation and liability thereof, including disbursement of the amount, is to be adjudicated only and only by the Commissioner. Even the jurisdiction of a Civil Court stands specifically excluded, as is evident from the bare reading of Section 19 of the Act. 11. An application for determination of compensation is to be filed before the Commissioner on a prescribed form. Neither any Section nor does the form stipulates that all the dependants must be party applicants. The Commissioner in terms of sub-section (2) of Section 22, is enjoined with the duty to adjudicate the rights of the dependants and the amount of compensation to which each one of them are entitled to. 12. In the instant case, present petitioner Bano Devi, was dependent upon the deceased, being his widow. The question which still needs to be considered is as to whether such dependency has to be considered as on the date of the accident; date of filing of the application; date of adjudication of the claims; or date of disbursement of the amount. This question is no longer res integra, for the apex Court in Pratap Narain Singh Deo Versus Srinivas Sabata and another, (1976) 1 SCC 289 ; Kerala State Electricity Board and another Versus Valsala K. and another, (1999) 8 SCC 254 and Oriental Insurance Co. Ltd. Versus Khajuni Devi and others, (2002) 10 SCC 567 , has categorically held the rights of the dependants are to be determined as per the laws prevalent on the date of the accident. 13. At the cost of repetition the purpose of the Act is clarified. Widow need not be financially dependent. Ltd. Versus Khajuni Devi and others, (2002) 10 SCC 567 , has categorically held the rights of the dependants are to be determined as per the laws prevalent on the date of the accident. 13. At the cost of repetition the purpose of the Act is clarified. Widow need not be financially dependent. The Act is a beneficial legislation enacted to provide for payment by certain classes of employer to their workman, compensation as a result of injury by accident. Object being to protect the interest of the workman and alleviate the suffering and eliminate their hardships. A mechanism is provided for resolving the dispute at the earliest and avoid unjust suffering to an employee/his dependent. The onus to furnish information of the accident and pay compensation is upon the employer. It is a beneficial piece of legislation enacted to compensate the workmen and their dependants in the event of accidents during the course of employment. Section 3 fastens liability upon the employer to pay compensation to the dependants/injured/deceased, in accordance with the provisions of the Act. What would be that amount of compensation is to be determined in terms of formula laid down under Section 4 of the Act. Significantly Section 8 clarifies that money is to be paid to the dependants. If the dependent is a woman or a person with legal disability, compensation so determined is to be paid only through the Commissioner (Workmen’s Compensation), who is duty bound to determine the question of apportionment and disbursement thereof. This has to be done in terms of Section 8 of the Act, which also empowers the Commissioner (Workmen’s Compensation) to vary the orders with regard to the determination of the amount from time to time, depending upon the change in the circumstances of the dependants. Section 10 requires issuance of notice to the Commissioner (Workmen’s Compensation) informing the occurrence of the accident/death. This has to be done within two years therefrom. However, as is evident from the 4th proviso of Clause (b) that even failure on the part of the dependant to serve such notice, is not fatal to the claim for compensation preferred by the dependent if the employer had knowledge of the factum of the accident. [New India Assurance Co. Ltd. Versus Momina Khatum and others, 2008 ACJ 2734 & Maan Singh alias Man Bahadur and another Versus New India Assurance Co. [New India Assurance Co. Ltd. Versus Momina Khatum and others, 2008 ACJ 2734 & Maan Singh alias Man Bahadur and another Versus New India Assurance Co. Ltd. and another, 2005 LAB I.C. 1300. Whole purpose and object of the notice is to move the machinery in the office of the Commissioner (Workmen’s Compensation) for just and fair determination and quick disbursement of the amount due to the rightful claimants. The idea is to make the employer accountable and not defeat the claim of the dependants. The Commissioner (Workmen’s Compensation) is empowered, upon being satisfied with the reasons for delay, in entertaining the claim beyond a period of two years. The Act does not prescribe that each one of the dependants is required to issue an independent or a collective notice. Information sought to be furnished is with regard to occurrence of the accident regardless of the person, who comes forward to do the needful. In fact, as is evident from the form prescribed for determination of compensation (Section 22) claims can be made by a third party for and on behalf of the claimants. 14. The apex Court in Oriental Insurance Company Versus Dayamavva and others, (2013) 9 SCC 406 , has clarified that the procedure prescribed under Section 8 of the Act, is initiated at the behest of the employer “suo motu” and cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Act. 15. The question of claim of the petitioner being eclipsed by law of limitation, as held by the Commissioner does not arise. Strictly, laws of limitation do not apply to the proceedings under the Workmen’s Compensation Act, 1923. Of course principle of delay and laches, in the given facts and circumstances, may or may not apply. 16. In the instant case, claim petition came to be filed on behalf of one of the dependants. That was sufficient for determination of compensation. Limitation so prescribed under Section 10 is only with regard to issuance of notice to the Commissioner Workmen and the object and purpose being to enable the Commissioner to take appropriate action against such of those employers, who commit default in complying with the mandatory provisions of Sections 3 and 4 of the Act. 17. In view of the aforesaid discussion, present appeal needs to be allowed. The order is illegal, perverse and erroneous. 17. In view of the aforesaid discussion, present appeal needs to be allowed. The order is illegal, perverse and erroneous. The Commissioner Workmen seriously erred in misconstruing the provisions of law in holding that petitioner herein, was not a dependant as her claim stood eclipsed by time and as such not entitled for apportionment of the amount to be disbursed, in terms of impugned order dated 07.08.2007, passed by the Commissioner under the Workmen’s Compensation Act, 1923, in File No.2, titled as Smt. Rashilu Devi Versus Secretary Self Help Group Bhaterh & another. 18. Since the petitioner herein has remarried and the original claimant has also shouldered the burden in discharging certain liabilities of the deceased, as mutually agreed, amount so determined by the Commissioner is directed to be apportioned between the present petitioner Bano Devi and private respondent Rashilu Devi in the ratio of 30:70 respectively. Accordingly Registry is directed to disburse the same, alongwith proportionate rate of interest. Substantial questions of law are answered accordingly. With the aforesaid observations, present appeal stands disposed of, so also pending applications, if any.