Amarsai @ Amar Singh Netam vs M/s. N.C. Nahar and Others

I.M. Quddusi, J.—Heard. The appellant has filed this appeal against the order dated 08.04.2009 passed by the Commissioner, Workmen''s Compensation-cum-Labour Court, Jagdalpur (CG) (for brevity ''the Commissioner'') in Case No. B/11/WC Act/ Fatal/2008.

The appellant herein is the son of deceased claimant who had filed the claim petition before the Commissioner seeking compensation on the ground that he was dependant on his son Shishupal, who last his life in the course of and under the employment of respondent No. 1 However, during the pendency of claim petition, father of the appellant herein died and the present appellant moved on application for substitution in place of deceased appellant. The Commissioner dismissed the application on the ground that the appellant does not come within the definition of ''dependant'' as defined u/s 2 (1)(d) of the Act. 1923. Being aggrieved by said order of rejection, the appellant has filed appeal.

Learned counsel for the appellant would argue that even if in the case of death of claimant during the pendency of claim petition, the claim petition survives and should be decided as if the claimant was alive as was alive as he would have entitled to get compensation had he been alive.

Before proceeding further it is necessary to peruse definition of ''dependant'' as provided in Section 2(1)(d) of Act, 1923, which is reproduced herein below:-

(d) "dependant" means any of the following relatives of a deceased (employee), namely-

(1) a widow, a minor [legitimate or adopted] son, an unmarried [legitimate or adopted] daughter, or a widowed mother; and

(2) if wholly dependent on the earnings of the [employee] at the time of his death, a son of a daughter who has attained the age of the 18 years and who is infirm:

(3) if wholly or in part dependent 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;

In the matter of Divisional Manager, New India Assurance Co. Ltd. Vs. Sanatan Tarai and Others, similar question has come up for consideration and the Court has held thus:

There is substance in the plea of the insurer that major elder brother of a workman is not encompassed by definition of ''dependant'' as given in the Act. However, clause (d) of sub-section (1) of section 2 of the Act is crystal clear that minor brother or unmarried sister or a widowed sister comes within the umbrella of expression ''dependant''. There being no dispute raised that claimant No. 3 Manjulata Tarai, was a minor sister of the deceased, she for the purpose of the Act is a dependant and is entitled to compensation...

In the matter of Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, the Hon''ble Supreme Court has held that where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought an record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decreetal debt forms part of this estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.

In the instant case it is not in dispute that the appellant was real brother of the deceased workman and father of the appellant herein moved claim petition stating therein that he was dependent on his deceased son and the aid application was entertained by the Commissioner. However, during the pendency of the claim, the original claimant i.e. father of the appellant herein, died and therefore the appellant moved an application for substitution in place of his deceased father on the ground that since he was dependent on his father, therefore, right to sue survives in his favour. The Commissioner vide order impugned rejected the said application on the ground that the appellant does not come under the definition of "dependent".

Considering the facts and circumstances of the case and further considering the law laid down in this regard, we are of the opinion that the Commissioner has not committed any illegality in rejecting the application of the appellant for substitution. However, has there been an award in favour of the father of the appellant, the appellant herein could have claimed substitution in place of his father being the legal heir as the amount of award would have formed part of the estate of his deceased father. Accordingly, the argument advanced by learned counsel for the appellant does not appeal to as right to sue does not survive to the appellant as right to sue was personal to the father of the appellant who was dependent on the deceased workman, Even otherwise, during the life time of appellant''s father and pendency of the claim petition also, the appellant would not have got any right of compensation. In the result, the appeal has no substance, the same deserves to be and is hereby dismissed. No order as to costs.