Ponnuswami Gounder vs Rengaswamy and Others

Mack, J.—The appellant is a P. W. D. contractor who appeals against an order by the Commissioner for Workmen''s Compensation

directing him to pay a sum of Rs. 550 as compensation to the father of a road employee who was killed by a stone roller while working on road

laying. The accident was reported by the Superintending Engineer of the PWD to the Commissioner and an enquiry was held by the Revenue

Divisional Officer, Tindivanam, under Rule 23(1), Workmen''s Compensation Rules. The enquiry disclosed that the deceased had a father, mother

and a minor brother aged 11 and a minor sister aged 2 alive. There is on record a statement by the lather recorded by the village Magistrate and

statements recorded from the contractor and one of his witnesses by the Revenue Divisional Officer.

According to the father''s statement, the son was 25 years old, but according to the contractor he was 16. According to one of the contractor''s

witnesses, the deceased was an emaciated boy who was prior to his employment by him as a road cooly earning six annas daily as wages. The

report of the Revenue Divisional Officer, accepted by the Commissioner, was to the effect that the deceased was earning at least eight annas a day

and as he was living with his parents his father was par-tially dependent on him.

No appearance has been made on this appeal by the respondent-father, who engaged an advocate, Mr. R. Krishnaswami who, however,

reported no instructions when, this appeal was taken up for hearing two weeks ago. I allowed some time for appearance by any other advocate as

Mr. Krishnaswami said that the papers were taken from him, but no appearance has yet been made.

Mr. Krishnamurthi Aiyar for the appellant has contended that, in the circumstances, the father cannot be deemed to be even partially dependent

on his son''s earnings. He has relied on a decision reported in -- Proprietor, St. Joseph''s Automobile and Mechanical Works, Tuticorin Vs. Maria

Soosai Pillai, , by Chandra Reddi J. in which some English decisions were considered, The facts there were rather different, the deceased

workman being a child of tender years, working as a cleaner on a daily wage of four annas. In that case the finding of the Commissioner that the

lather of the child was partially, dependent on his earnings was reversed on the ground that the earnings of the child far from being an asset to the

family were not sufficient to maintain him and, in fact, that the father had to spend a portion of his own ear-pings on the maintenance of his son.

Whether a person is partially dependent on the earnings of a deceased workman is a matter essentially of fact to be decided in the circumstances

of each case.

In -- ''Main Colliery Co. v. Davies'', (1900) AC 358 (B), the son killed was 16 years old and was earning on an average 8 sh. a week but lived

at home with his father and mother and gave them all his wages. They fed him, clothed him and housed him and gave him a little pocket money.

The father was a collier earning about 25 sh. a week. The County Court Judge, held that he was a partial dependent and awarded him

compensation. This finding was reversed in the Court of Appeal but the House of Lords restored the finding of the County Court Judge. The Earl

of Halsbury L. C. made the following observations which appear to be particularly appropriate to a Hindu joint family :

Therefore, the burden being upon the father of the family the father of the family in his turn obtains from the wages of those who are being

maintained by him a partial contribution to the general family fund. Why is not the father in the discharge of that burden partly dependent upon the

earnings which he receives from his children? I am not able to answer that question. It appears to me that he must be relying or dependent -- call it

what you please -- for the means by which he discharges his legal obligation upon the funds supplied to him, or partly supplied to him, by the

children who earn those funds.

Lord Shand, who concurred in the decision said he agreed with the County Court Judge in thinking that there was mutual dependency between the

parties -- that each depended to some extent upon the other -- and that the father was to some extent dependent upon his son''s wages. It was

emphasised in that decision that each case must depend on its own facts.

In -- ''Peart v. Bolckow, Vaughan & Co.'', (1925) 94 LJ KB 497 (C), two cases were considered by the Court of Appeal, both, it would

appear, somewhat similar. In the one case the deceased was 14 years old earning 15 sh. 3 d. a week and the father earning �3, 11 sh. a week.

In the second case a boy aged 11 was contributing 11 sh. 10 d. a week and the father �1 a week. The County Court Judge found in the former

case that the father was entitled to compensation but not in the latter case. The Court of Appeal confirmed his findings of fact decided after taking

into consideration all the circumstances of the case and not merely by striking a balance between the earnings and cost of living per head. The

Court of Appeal also held that the County Court Judge was entitled to apply his judicial experience and knowledge of the standard of living among

the industrial population of the district over which he has jurisdiction, and is also entitled to and should take into consideration not only the present

earnings of the deceased, but any prospective increase of earnings in the near future.

Coming fo the facts of the present case we have a poor family eking out its livelihood by doing cooly work, the father claiming he earns only

eight annas a day, though he probably in fact earns a little more than this on days he can get work and the son also earning eight annas a day. It is

extremely difficult to lay down any hard and fast rule about what is sufficient for the maintenance of an individual person, and to work out an excess

out of his earnings available for the father and mother and the other members of the family to enjoy. I find it not easy with great respect to express

complete concurrence with the following observation of Chandra Eeddy J. who considered the two decisions I have cited and also some others :

The principle deducible from the various decisions is that when the earnings of the deceased workman were hardly sufficient for his maintenance

and no balance left which would contribute to the family fund the parent cannot be said to be a dependent within the meaning of Section 2, Clause

(1)(d).

In cases of poor working families, particularly fhose living jointly all the earnings come into a common pool and it may often happen that the

common pool is actually quite insufficient to maintain the members at a bare standard of existence.

I have given careful consideration to the case of the respondent although he has not been represented by an Advocate. It is unreasonable to

expect a cooly working in the mofussil several miles away to engage an advocate on any substantial fee to make an appearance in this Court and

fight out the matter of compensation. Nor can I fairly make any inference that from the fact that the advocate he engaged reported no instructions,

he had not a good case to present in this Court. I can see no legal grounds for any interference with the finding of fact by the learned

Commissioner. Section 30 specifically lays down that no appeal lies against any order unless a substantial question of law is involved in the appeal.

It cannot be said that in view of the undisputed material in the case, there was insufficient evidence to justify the learned Commissioner''s finding.

The appeal is dismissed but without any order as to costs.