Mayfield Estate Nallakottah Nilgiris vs Krishnan

An important question arises for consideration in this case, whether any person other than a dependent can file a petition under the Workmen''s

Compensation Act for requiring adjudication as to the claim in relation to the deceased workman. Admittedly in this case, the respondent''s wife

died in the course of employment. Compensation came to be fixed at Rs. 19,200/-. It is this order which is appealed against. In so far as S. 2(1)

(d) of the Act defines ''dependent'' who alone can invoke the jurisdiction and the same has not been gone into by the Court below, the order

cannot be supported. In support of this submission, reliance is placed on the decisions reported in Domjee v. Maung Mia sein 186 Ind.Cas. 93

and also B. M. Habeebulla Maricar v. Periaswami 1977 II L.L.J. 324. The further contention is that this is not a case of suo motu enquiry in which

event S. 10A of the Act will apply. Therefore, where the party wants to invoke the jurisdiction of the Commissioner for Workmen''s

Compensation, it can be only by a dependent. The learned counsel for the respondent, after taking me through the various provision of the Act to

which I will make reference shortly, contends that it is one thing to say that the jurisdiction cannot be invoked and it is another thing to say that the

amount so determined and deposited cannot be disbursed. It is only at the stage of disbursement of the amount, it has to be decided as to

dependency. In any event, it is submitted that where the procedure under part V has not been followed and there was no specific issue as to

dependency, this Court may direct that point to be decided.

In order to appreciate the rival contentions, it is necessary for me to refer to some of the provisions of the Act which have appeared on the issue

raised in this appeal. The Workmen''s Compensation Act, 1923 (hereinafter referred to as ''the Act''), is one to provide for the payment by certain

classes of employer to their workmen of compensation for injury by accident. It cannot be gainsaid that this is a statutory liability. Every employer

is subject to the provisions of the Act when he falls within the four corners of the Act when S. 2(1)(d) of the Act defines ''dependent'' under Clause

(iii) so far as the widower like the respondent is concerned, saying ''if wholly or in part dependent on the earning of the workman at the time of his

death'' (a) a widower. Therefore, by a reading of this definition, it is clear that there must be a material dependency as far as the widower is

concerned.

S. 3 of the Act talks of the employer''s liability for compensation. S. 4 of the Act lays down the format for quantum of compensation. One thing

must be noted in this case, so far as this Act is concerned that even private payment of compensation will not discharge the statutory liability. This

is because an unscrupulous employer may compensate his liability by paying a paltry sum taking advantage of the ignorance of the workman.

Therefore, the Act talks of every safeguard to see that justice is done to the workman by way of compensation for any injury or death that had

occurred in the course of employment. S. 10(1) of the Act is important. That reads as follows :

Notice and claim - 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.

* * * * *

Therefore, this is a sine qua non for entertainment of the claim in relation to compensation. S. 10A of the Act, which is relied on by the learned

counsel for the respondent, may be extracted now in full :

Power to require from employers statements regarding fatal accidents - (1) Where a Commissioner receives information from any source that a

workman has died as a result of an ''accident arising out of and in the course of his employment, he may send by registered post a notice to the

workman''s employer requiring him to submit, within thirty days of the service of the notice, a statement in the prescribed form giving the

circumstances attending the death of the workman, and indicating whether in the opinion of the employer, he is or is not liable to deposit

compensation on account of the death.

(2) If the employer is of opinion that he is liable to deposit compensation, he shall make the deposit within thirty days of the service of the notice.

(3) If the employer is of opinion that he is not liable to deposit compensation, he shall in his statement indicate the grounds on which he disclaims

liability.

(4) Where the employer has so disclaimed liability, the Commissioner after such inquiry as he may think fit, may inform any of the dependents of

the deceased workman; it is open to the dependents to prefer a claim for compensation, and may give them such other further information as he

may think fit.

By a reading of this section, it is clear that the Commissioner has no power at all to fix the amount of compensation or the liability of the employer

under the section, because once the liability is so denied, then he has no further option except to inform the dependents of the deceased workman

to prefer a claim, which is contemplated under S. 10A(4), of the Act. As a matter of fact, in B. R. Ray v. T. K. Nenglyer AIR 1959 Gun 9, it has

been held that there is no power given to the Commissioner to determine the amount of compensation and the liability of the employer under this

section. Therefore in case of exercise of suo motu powers as is contemplated under the above section, which has been extracted in full, it will be

very clear that there is no possibility of compensation being determined at the instance of anyone. At this stage itself, I may usefully refer to Rule 8

of the Workmen''s Compensation Rules, 1924. That rule contemplates application by dependents for deposit of compensation. Under this rule, the

application can be made only by a dependent, since it says that a dependent of a deceased workman may apply to the Commissioner for the issue

of an order to deposit compensation in respect of the death of the workman and such application shall be made in Form G. This necessarily takes

me to Form G. That is set out in full as follows :

FORM G

(See Rule 20)

Application for compensation to the Commissioner for Workmen''s Compensation.

...................................

...................................

residing at .......................................................

..................... Applicant v. ................................

residing at ........................... Opposite party.

It is hereby submitted that -

(1) .............. a workman employed by (a contractor with) the

opposite party on the .......... day ......... of ....... 19 ......

received personal injury by accident arising out of and in the course

of his employment resulting in his death on the ......... day

of ................. 19 ............ The cause of the injury was (here

insert briefly in ordinary language the cause of the

injury) ............................................................

...............................

(2) The applicant(s) is a/are dependent (s) of the deceased workman

being his .........................................................

(3) The monthly wages of the deceased amount to Rs. ............. The

deceased was over/under the age of 15 years at the time of his death.

(4) (a) Notice of the accident was served on the ............... day

of ............

(b) Notice was served as soon as practicable.

(c) Notice of the accident was not served (in due time) by reason

of ....................

(5) The deceased before his death received as compensation the total

sum of Rs. ......... The applicant(s) is/are accordingly entitled to

receive a lump sum payment of Rs. .............

You are therefore, requested to award to the applicant the said

compensation or any other compensation to which he may be entitled.

Dated .............. 19 ..........

Applicant.

Column (2) clearly contemplates an applicant being a dependent and the last portion of the above form states, ''You are therefore, requested to

award to the applicant the said compensation or any other compensation to which he may be entitled.'' Therefore, the award of compensation is

only to the applicant who is none other than the dependent.

S. 22 of the Act may now be seen. That section says that no application for the settlement of any matter by a Commissioner, other than an

application by a dependent or dependents 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. Therefore, certainly, this section will not apply because of the specific

exclusion of an application by a dependent for compensation and all the rules commencing from Rules 20 to 26 relate only to application.

I may carefully refer to the case law relied on by the learned counsel for the appellant. Domjee v. Maung Mia Sein (supra) states as follows :

The purpose of the Workmen''s Compensation Act in awarding compensation is not to give solatium to a relative of a person who is an employee

and has been fatally injured, but something to replace the actual loss which he or she has suffered. The question of dependency is a question of fact

which must be decided in relation to the case.

In an application for compensation for the death of his wife on the ground that she met her death in the course of her employment the applicant did

not set out any grounds for showing that he was in fact dependent on his wife. He merely said before the Commissioner that he and his wife used

to pool their earnings which went into the common pot. Besides this, there was nothing to suggest that he had suffered at all any pecuniary loss on

account of the wife''s death.

Held, that the evidence given before the Commissioner on the question of dependency was by no means sufficient to establish a condition of

dependency as a fact.

The same view was taken by a Full Bench of this Court in B. M. Habeebulla Maricar v. Periaswami (supra). That was also a case of a claim for

compensation. The Full Bench held at Paras 4 and 5 of B.M. Habeebullah Maricar Vs. Periaswami and Others, :

The concluding part of the S. 2(1), Clause (n) of the Workmen''s Compensation Act which states that any reference to a workman who has been

injured, shall, where the workman is dead, include a reference to his dependents or any of them, is very significant. For all practical purposes it

enlarges the definition of ''workman'' so as to bring within its compass the dependents of a workman. This means that if S. 9 is interpreted in the

light of the definition in the said Clause (n), that section should apply not only to a workman who is alive and to whom compensation is payable but

also to one who is dead and whose dependents are in a position to receive compensation. The word ''workman"" as occurring in S. 9 would thus

mean the workman himself if he is alive and his dependents if he is not.

Therefore, having regard to S. 2(1)(n) of the Act, which has been relied on by the Full Bench with regard to the definition of workman, it stands to

reason that the person who wants to invoke the jurisdiction of the Commissioner, can only be a dependent and nobody else.

In the view taken by me, normally I would have dismissed the application and allowed the appeal. However, I find that the parties did not

concentrate on this issue at all. Therefore, there was no opportunity to let in any evidence whatever. In view of the fact that the procedure under

Part V has not been followed and in view of the fact that there was no specific issue concerning the same, I should think that the interests of justice

would require that both the parties be afforded an opportunity to have a finding on this vital issue. Accordingly, the order under appeal is hereby

set aside and the matter is remitted for fresh consideration including the question whether the respondent is a dependent of the deceased Lakshmi.

It will be open to the parties to adduce such oral and documentary evidence as they deem fit. The Commissioner for Workmen''s Compensation is

hereby directed to dispose of the matter before 31st July, 1983. The civil miscellaneous appeal is accordingly allowed, there will be no order as to

costs.