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2021 DIGILAW 486 (HP)

Santi Devi v. Director Of Health Services & Ors.

2021-07-30

JYOTSNA REWAL DUA

body2021
JUDGMENT Jyotsna Rewal Dua, J. - The claim petition filed under Section 22 of the Employee's Compensation Act, 1923 (in short 'Act') by the mother of the deceased has been dismissed by the learned Commissioner, Employee's Compensation Act, Rampur Bushahr, District Shimla on 15.03.2021, holding that she had neither any cause of action nor the locus standi to maintain the petition. The widow and minor daughter of the deceased have been held entitled to the compensation amount, being dependent upon the deceased in terms of Section 2(d) of the Act. Aggrieved, instant appeal has been preferred by the mother of the deceased. 2. Facts:- 2(i). A claim petition was preferred by the appellant under the Employee's Compensation Act, with the averments that her son-Sunil Kumar was employed with respondents No.1 to 3. During the course of his employment, he met with an accident on 16.07.2016 and died on the spot. Deceased was 27 years old at the time of the accident. He had left behind his wife-Smt. Vinakshi/ respondent No.5, his minor daughter-Kumari Neha/ respondent No.6 and the appellant (mother) as his legal heirs. The appellant and respondents No.5 & 6 were dependent upon deceased's earning. A compensation of Rs.16,00,000/- alongwith interest @ 12% per annum was prayed for. 2(ii). Respondents No.5 and 6 had preferred their separate claim petition. They opposed the claim petition filed by the present appellant by filing their separate reply. They raised preliminary objections that the appellant had no cause of action to file the petition and that the petition was not maintainable on her behalf. Respondents No.5 and 6 further submitted that the deceased-Sunil Kumar was employed as a Driver in an ambulance by the respondents No.1 to 3 on monthly salary of Rs.9,698/-. The ambulance met with an accident on 16.07.2016 at Badrash. Sunil Kumar succumbed to the injuries suffered by him. These two respondents, i.e. widow and daughter of the deceased, also highlighted the fact that subsequent to the death of Sh. Sunil Kumar, the appellant ousted them from their home and that they were residing in the parental house of respondent No.5. It was further the case of respondents No.5 and 6 that appellant's husband (deceased's father) was serving as a Foreman in SJVN Limited at Jhakri and drawing monthly salary of Rs.27,561/-. Therefore, the appellant was not dependent upon the deceased. It was further the case of respondents No.5 and 6 that appellant's husband (deceased's father) was serving as a Foreman in SJVN Limited at Jhakri and drawing monthly salary of Rs.27,561/-. Therefore, the appellant was not dependent upon the deceased. It was only respondents No.5 and 6, who were dependent upon the deceased and entitled to the compensation. 2(iii). Learned Commissioner, on the basis of the pleadings of parties, framed various issues including the following two issues on the maintainability and locus standi of the appellant to maintain the petition:- "6. Whether the petitioner has no cause of action to file the present petition, as alleged? OPR 7. Whether the petitioner has no locus standi to file the present petition, as alleged? OPR" After considering the pleadings & evidence and after hearing the arguments, learned Commissioner, vide judgment dated 15.03.2021, held that the deceased-late Sh. Sunil Kumar was employed with respondents No.1 to 3 (respondents No.1 and 2 being principal employer and respondent No.3 being Contractor). He died during the course of his employment. His monthly salary was held to be Rs.8,500/-. After applying the relevant factor, compensation of Rs.8,54,280/- was worked out. Additionally, an amount of Rs.5,000/- towards performing last rites of the deceased and a penalty amount of Rs.50,000/- was also assessed by the learned Commissioner. The vehicle was found to be insured by respondent No.4 and therefore, liability to bear the burden of compensation was fastened upon it alongwith interest @ 12% per annum from the date of the accident till the date of actual payment of the entire amount. Respondent No.3 was held liable to pay the penalty amount of Rs.50,000/-. 2(iv). Respondents No.5 and 6, being dependants upon the deceased Sh. Sunil Kumar, have been held entitled to receive the entire compensation amount. In fact, respondents No.5 and 6 have filed their separate claim petition for compensation. Learned Commissioner observed that their claim would be considered in that petition itself. The claim petition filed by the appellant was dismissed on the ground that she was not entitled for any compensation, being not a dependent upon deceased as per Section 2(d) of the Act. Since the petitioner has not been held entitled for the compensation amount, she has filed the instant appeal. 3. Heard learned counsel for the appellant and learned Additional Advocate General for respondents No.1 and 2. Since the petitioner has not been held entitled for the compensation amount, she has filed the instant appeal. 3. Heard learned counsel for the appellant and learned Additional Advocate General for respondents No.1 and 2. Learned counsel for the appellant submitted that the case of the appellant falls under Section 2(d)(iii) of the Act. The appellant is the mother of the deceased and therefore, she is entitled for the compensation. Her claim petition could not have been dismissed. Learned Additional Advocate General supported the judgment passed by the learned Commissioner. 4. The claim petition was filed by the appellant under Section 22 of the Act. Under Section 22 of the Act, the application for compensation can be moved only by a dependant. The section reads as under:- "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. (1A) Subject to the provisions of sub-section (1), no application for the settlement of any matter by 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 matter 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." The word 'dependant' has been defined under Section 2(d). The definition is as under:- "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 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." As mother of the deceased, the appellant does not fall in Section 2(d)(i). The appellant does not even fall in Section 2(d)(ii) and 2(d)(iii). Learned Commissioner after appreciating the evidence, has returned factual findings that the appellant's husband is alive and working in SJVN Limited, Jhakri. The salary of the appellant's husband is more than Rs.27,000/- per month. Deceased Sunil Kumar alongwith his family, consisting of his wife-respondent No.5 and minor daughter-respondent No.6, was residing separately from the appellant. Learned Commissioner has also noticed the admission made by the appellant in her cross-examination that her husband (deceased's father) bears all expenses of her own family. Learned Commissioner was correct in concluding that the appellant was not a dependent upon the deceased. Learned Commissioner has also noticed the admission made by the appellant in her cross-examination that her husband (deceased's father) bears all expenses of her own family. Learned Commissioner was correct in concluding that the appellant was not a dependent upon the deceased. Only those relations, who were dependent upon the deceased in terms of the provisions of the Act, are entitled to the compensation under the Act. No other person has a right to claim compensation. Appellant cannot claim compensation under the Act only on count of being a legal heir of the deceased. In the facts of the case, the appellant did not fall in any of the categories under Section 2(d) of the Act. No interference in the impugned judgment, therefore, is called for. The appeal is accordingly dismissed in limine.