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2017 DIGILAW 1118 (ALL)

GOEL ROAD CARRIERS v. RAVINDRA NATH SINGH

2017-04-27

RAN VIJAI SINGH, VINOD KUMAR SRIVASTAVA III

body2017
JUDGMENT By the Court.—We have heard Sri Sharad Malviya, learned counsel for the appellant, Sri Tripathi B.G. Bhai, learned counsel for claimant-respondent No. 1 and Sri Siddhartha Jaiswal, holding brief of Sri Ashok K. Jaiswal, learned counsel for respondent No. 2. 2. This appeal has been filed against the judgment and order dated 26th September, 2011 passed by the Employees’ Compensation Commissioner, Basti in Case No. 115 of 2010 (Ravindra Nath Singh v. M/s. Goel Road Carriers), by which the claim petition filed by the claimant-respondent No. 1 has been allowed and the appellant has been directed to pay the claimant-respondent No. 1 Rs. 14,28,000/- alongwith 6% interest from the date of institution of the claim petition till the date of actual payment within a period of two months. 3. The main ground of challenge to the aforesaid award is that the claimant, being major brother of the deceased, was not entitled to get the compensation under the Workmen Compensation Act, 1923 (hereinafter referred to as, ‘the Act’), as major brother does not fall in the definition of the dependants. 4. Sri Tripathi, learned counsel for claimant-respondent No. 1 submits that neither such plea was ever raised before the Workmen Compensation Commissioner, nor any issue was framed to that extent, therefore, the plea taken by the appellant that the claimant-respondent No. 1 was not dependant and hence, the claim petition was not maintainable is totally misconceived and liable to be rejected. 5. For deciding the issue in question, it would be appropriate to quote Section 2(d) of the Act, which reads as under : “2. 5. For deciding the issue in question, it would be appropriate to quote Section 2(d) of the Act, which reads as under : “2. Definitions: In this Act unless there is anything repugnant in the subject or context - **** (d) dependent means any of the following relatives of a 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 paternal 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.” 6. From the plain reading of sub-section (iii)(d) of Section 2 (d) of the Act, it transpires that a minor brother or an unmarried sister or a widowed sister, if a minor, has been treated to be dependant of the deceased employee. 7. The submission of learned counsel for the appellant is that the claimant-respondent No. 1 was major on the date of filing of the claim petition, therefore, he will not fall in the ambit of the dependant as defined under Section 2(d) of the Act, hence, he could not maintain the claim petition. 8. Refuting the submissions of learned counsel for the appellant, learned counsel for the claimant-respondent No. 1 contended that the persons mentioned in Section 2(d) of the Act as dependants are not conclusive and it will include other legal heirs also, if they were dependants upon the deceased employee, may be major brother. 9. 8. Refuting the submissions of learned counsel for the appellant, learned counsel for the claimant-respondent No. 1 contended that the persons mentioned in Section 2(d) of the Act as dependants are not conclusive and it will include other legal heirs also, if they were dependants upon the deceased employee, may be major brother. 9. Here in this case, the deceased, Manoj Kumar was unmarried and left no dependent except respondent No. 1, Ravindra Nath Singh, who happens to be the real brother of the deceased. Nothing has been brought on record to show that the claimant was dependent upon the income of his deceased brother. 10. We have perused the definition of the dependents particularly Sub-Section (III)(d) of Section 2 (d) of Workmens Compensation Act. From perusal of which, it is apparent that the major brother has not been included in the definition of the dependent. 11. A Division Bench of this Court in the case of G.N. Bhandari v. Railway Administration; 1983 AIR (All) 150, has observed as under: (6) “From the above, it would appear that in order to be entitled to claim compensation, it is necessary that the claimant must have been wholly dependent on the earning of the workman at the time of his death. Nothing could be brought to out notice in the appeal to show that the Appellant was dependent on the earning of the deceased Vinod Kumar Bhandari. It may further be noted in this regard that Vinod Kumar Bhandari was not employed at the time when the accident took place. He was, according to the case of the Appellant himself, returning after interview. There being no evidence on record that the Appellant was dependent on the earning of his son Vinod Kumar Bhandari, the Appellant does not qualify the requirement of Section 2(d)(iii)(b) of the Workmen’s Compensation Act, 1923. Hence, his claim for compensation was rightly rejected by the ad hoc Claims Commissioner.” 12. Reliance has also been placed upon the judgment of Kerala High Court in the case of Alice and another v. Commissioner for Workmen’s Compensation and another; 1987 ACJ 1090. Hence, his claim for compensation was rightly rejected by the ad hoc Claims Commissioner.” 12. Reliance has also been placed upon the judgment of Kerala High Court in the case of Alice and another v. Commissioner for Workmen’s Compensation and another; 1987 ACJ 1090. In Paragraph 6 of the aforesaid judgment, the Division Bench of the Kerala High Court has held as under : (6) “From the report of the Assistant Labour Officer, Nayyattinkara dated 3.4.1981 (file page 25_ it is seen that deceased Thomas was a bachelor and that he was the second son of deceased Jacob in his first wife, Rahel. Jacob and Rahel are no more. In his second wife, Alice (1st appellant) Jacob had two children, namely, Chellappan and Suseela (2nd appellant) the younger brother of deceased Thomas, namely, Bhanu is at Bombay now. Under Section 2(1)(d) of the Workmen’s Compensation Act, the brother of the deceased, who is a major, is not his dependant. However, the 2nd appellant who comes within the meaning of the word ‘unmarried sister’ will be a dependant. Under the circumstances we hold that the 2nd appellant is entitled to the compensation amount due on account of the death of deceased Thomas. Therefore, the appeal is allowed and the respondent Nos. 2 and 3 are directed to pay the compensation amount of Rs. 9, 720/- to the 2nd appellant, within two months from this date, failing which she will be entitled to realise the said amount with 9 percent interest from this date.” 13. Reliance has also been placed upon the Judgment of Rajasthan High Court in Gopal Synthetics v. Workmen’s Compensation Commissioner and others; 1995 ACJ 908. The learned Single Judge of the Rajasthan High Court has held that if the workmen had expired, the right to claim compensation was in respect of category of persons, who were defined in Section 2(1) (d) of the Act. No other persons has a right to claim the same. 14. The Full Bench Judgment of Madras High Court in B.M. Habeebullah Maricar v. Periaswami; 1977 AIR (Mad) 330, the following observations have been made. No other persons has a right to claim the same. 14. The Full Bench Judgment of Madras High Court in B.M. Habeebullah Maricar v. Periaswami; 1977 AIR (Mad) 330, the following observations have been made. (4) “The object of the Act was thus to make provision for the payment of compensation to a workman only, i.e., to the concerned employee himself in case of his surviving the injury in question and to his dependants in the case of his death this being so in view of the definition contained in CL. (n) of sub-s. (1) of S. 2 and to nobody else (as would appear from the discussion which follows). Section 3 of the Act provides that 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’. This section is completely silent about the person to whom compensation is payable. Section 4 deals with a quantum of compensation which is to be assessed with reference to the provisions of schedules I and IV to the Act.” “A look at this definition of the term ‘dependant’ would show that it is not intended to benefit all the heirs of a deceased workman, but to embrace only those relations who, to some extent, depend upon him for their daily necessities, so much so that even some of his nearest and dearest ones, viz., sons who have attained majority, married daughters, and an illegitimate daughter, whether married or unmarried are excluded if they were not dependant on the worker’s earnings, wholly or in part. Kinship coupled with dependency, is thus made the sole criterion for a person to fall within the ambit of the definition. And if that be so, there is no reason why the benefit of the Act should go to heirs other than ‘dependants’ and S. 9 coupled with the definition in CL. (n) of sub-sec. (1) of S. 2 be given a restricted meaning in derogation of the language used by the legislature. And if that be so, there is no reason why the benefit of the Act should go to heirs other than ‘dependants’ and S. 9 coupled with the definition in CL. (n) of sub-sec. (1) of S. 2 be given a restricted meaning in derogation of the language used by the legislature. To hold otherwise and to extend the benefit of the Act to the legal representatives of the deceased workman or of the dependants would be to burden the employer with liability not flowing from the object which the Act sought to achieve and to pass the benefit provided by the Act to persons altogether outside the class contemplated by it.” 15. The same view has been reiterated in Bani alias Girish Chandra Mendiratta and another v. Sunder Lal Alias Sunder Singh and another; 2005 (2) SCT 677, 2005 All L.J. 696. 16. Shri Tripathi B G Bhai, who appears for the respondents submitted that in the written statement filed by the appellant, it has nowhere been denied that the contesting claimant-respondent No. 1 was dependent upon the deceased. He further submitted that after the award under appeal, the appellant has deposited the entire amount before the Workmen Compensation, Commissioner and claimant-respondent No. 1 has been permitted to withdraw Rs. 3,00,000/- (Rupees three lac) without furnishing any security. 17. After hearing the counsel for the parties and looking into the object of the Act, which was basically meant for extending the compensation to the workmen only in a case of injured workmen and in a case of death of the workmen, to the dependent of the deceased workmen. 18. After going through the definition of dependent, it transpires that only the mother, son, daughter and father have been included in the list of the dependents. 19. Here in this case, we have gone through the claimants petition, which is available on the record and the same has been summoned for the purpose of deciding this appeal, we find that the claimant has not set up his case for compensation claiming himself to be dependent upon the deceased, therefore, we are of the considered opinion that the claimant was not dependent upon the deceased. Therefore, in view of law laid down by the various High Court as reffered here in above and in Alice and another v. Commissioner for Workmen’s Compensation and another (supra) as well as of this Court in Bani alias Girish Chandra Mendiratta and another v. Sunder Lal Alias Sunder Singh and another (Supra), the appellant will not be entitled to get the compensation. 20. In view of foregoing discussions, we find that the award passed by the Tribunal is illegal and arbitrary and deserves to be set aside. Hence, the order dated 26.9.2011 passed by the Workmen Compensation Commissioner/Deputy Labour Commissioner, Basti in Case No. 115 of 2010 is set aside. 21. The appeal succeeds and is allowed. 22. It may be observed that although we have allowed the appeal and set aside the award, but considering the facts that the claimant-respondent has already withdrawn Rs. 3,00,000/- without furnishing any security, we direct the appellant not to realize the same from the claimant-respondent. The remaining amount deposited before the Tribunal shall be returned to the appellant alongwith interest, which has accrued upon the deposited amount.