Smt. Shakuntla Devi vs Smt. Beer Kaur and Others

V.S. Aggarwal, J.—This is an appeal filed by Smt. Shakuntla Devi (hereinafter described as ''the appellant'') directed against the order passed by the Commissioner Workmen''s Compensation, Ambala dated 11.3.1996. The Commissioner Workmen''s Compensation dismissed the application filed by the appellant.

The relevant facts are that appellant is the mother of deceased Ramesh Kumar. She alongwith others had submitted a claim application u/s 3A of the Workmen''s Compensation Act, 1923, praying compensation on account of death of Ramesh Kumar. It had been asserted that Ramesh Kumar was employed by respondents 1 to 3. During the course of employment he was bitten by a snake. His average monthly wages were Rs. 1,500/- and that he had died during the course of employment. Compensation of Rs. one lac was claimed. The application as such was contested. It was asserted that Ramesh Kumar was not in employment of the respondents and that applicant was not entitled to any compensation. Needless to state that alongwith the appellant certain other persons had submitted the claim. They were the widow of the deceased and the minor children. During the course of the proceedings she had stated that she was not interested in the claim. The present controversy, therefore, only pertains to the present appellant.

The learned Commissioner on appraisal of the evidence on the record held that it is not established that the deceased was working with the respondents. It was further concluded that appellant was not dependent on the respondents. Accordingly, the application as such was rejected. Aggrieved by the same, the present appeal has been filed.

Notice of the same had been issued to the respondents but there was no appearance on behalf of the respondents. Therefore, this Court did not have the advantage of hearing the respondents or their counsel.

The first and foremost question that comes up for consideration is as to whether the deceased was in employment of the predecessors-in-interest of respondents 1 to 3, namely Amar Singh and secondly he died during the course of employment.

In this regard the appellant had appeared as a witness and stated that deceased was working with the respondents (predecessor-in-interest, namely Amar Singh). He died due to snake bite while he was watering the fields. He was taken to the hospital where be breathed his last. According to her his monthly wages were Rs. 1,200-1,300/- p.m. During cross examination she admitted that her husband was alive and they both were working as labourer to earn their livelihood. She admitted that she has two sons. She stated that her younger son Ramesh has died and her elder son is living separately. However, she denied that she was not dependent on the deceased. She however, admitted that her daughter-in-law namely widow is residing separately. Her claim was supported by Subhash Chand who appeared as AW-2. He denied that he was deposing falsely against Jaswinder Singh because he had contested for the post of Sarpanch. Amar Singh AW-3 was vague in his statement when he testified that deceased was working with some landlord. As against the Jaswinder Singh respondent appeared as RW-1. He testified that Ramesri was not their employee in the year 1992. According to him there were some other employees at that time. However, he admitted that Ramesh deceased had served them for 1-2 years before the said incident. Om Parkash RW-2 made a similar statement that deceased was not working as alleged by the appellant.

On appraisal of the evidence it is patent that the Commissioner Workmen''s Compensation has misread the evidence. It has to be born in mind that it was not a statutory appointment. There could not be a written letter of appointment. Necessarily one has to appreciate the evidence. While it is not disputed that the deceased died as a result of snake bite, the only fact in controversy was that if the deceased was working as a employee of the respondents. It is as referred to above that earlier the deceased was working with the respondents. It is not forthcoming as to when he had ceased to be in employment of the respondents. In the absence of it being shown that as to when he ceased to be in employment, the findings of the Commissioner Workmen''s Compensation cannot be sustained. Believing the evidence of the appellant and her other witnesses, it must follow that deceased was in employment of the respondents.

Immediately the question arises as to whether he died out of and in the course of employment. It cannot be disputed that it is for the workman or the claimant who has to establish this fact. The Supreme Court had considered this controversy in the case of Machinnon Machenzie & Co. Pvt. Ltd. v. Ibrahim Mahmmed Issak, 1969 Accident Claims Journal 422. The Supreme Court held:-

"In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess, on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it."

The same question was considered by the Orissa High Court in the case of Debaki Swain and Anr. v. Executive Engineer, Electrical Division, Bhawanipatna, Orissa State Electricity Board, 1988 Accidents Claim Journal 836. In the cited case the workman was a helper attached to a lineman. As instructed by the lineman he went up the ladder to hand over a tube light to the lineman for fixing on electric pole. He touched the pole and received injuries as a result of the shock. The question arose as to whether he was entitled to the compensation for the act arising out of or during the course of employment. It was argued that he was negligent. The answer was in the affirmative.

Similarly in the case of Management of Devon Estate, Nilgiri v. Nabeesa and Anr., 1991 Accidents Claims Journal 489 the workman while going to field from the muster suffered from acute chest pain and died. The question arose whether the death occurred out of and in the course of employment. In the facts it was held in the affirmative. The conclusions arrived at are:-

"There is no dispute in this case that the deceased Mohamed was a workman under the appellant. Mr. T.S. Gopalan, learned counsel for the appellant, contended that the workman Mohamed died of heart attack and that the first respondent failed to establish that the workman Mohamed died in the course of and out of employment and that the first respondent failed to establish the causal connection between the work and the injury and, therefore, the appellant is not liable to pay compensation. In support of his contention learned counsel relied on the decisions in Laxmibai v. Port Trust, Bombay, (1954)1 L.L.J. 614, Kamla Bai v. Divisional Superintendent Central Railway, 1971 A.C.J. 170 (Bombay) and Sarat Chatterjee & Co. v. Khairuneessa, 1967 A.C.J. 290 (Calcutta). The contention of the learned counsel is without substance. The oral evidence let in on behalf of the first respondent herein disclose that on 9.6.1981 the deceased Mohammed during the course of his employment in the working hours, while he was going to the field from the muster, suffered from acute chest pain and as a result of which he died instantaneously at the hospital at 8.45 a.m. Under these circumstances in view of the evidence of AWs it has to be held that the deceased workman died in the course of his employment."

Similarly, this Court in the case of Sampuran Singh Vs. Mukhtiar Singh, was concerned with the facts when the workman was engaged in threshing the wheat of his employer. His thumb and fingers were cut. It was held that the workman was entitled to compensation.

Thus, merely stating or urging that the snake bite which occurred incidentally will make her entitled to compensation will be contrary to law. The plea so raised must fail and accordingly it must be held that death took place during the course of employment.

However, the main controversy that arises for consideration is as to if the appellant was dependent on the deceased or is entitled to claim the compensation or not. It was not disputed by the learned counsel that she would be entitled to compensation if she was dependent on the deceased. Section 2(d) of the Workmen''s Compensation Act, 1923 reads:-

"2(d) "dependent" means any of the following relatives of a deceased workman, namely:-

(i) a widow, a minor (legitimate or adopted) son and unmarried (legitimate or adopted) daughter or a widowed mother; and

(ii) if wholly dependent on the earnings of the workman 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 dependent on the earnings of the workman 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 workman is alive;

Explanation.- For the purposes of sub-clause (ii) and items (f) and (g) of sub-clause (iii) ''reference to a son'' daughter or child include an adopted son, daughter or child respectively."

Perusal of the definition clearly reveals that a widowed mother necessarily is a dependent. This is so because of the clear meaning of Section 2(d)(i) of the Act. The parents other than a widowed mother would be entitled to compensation if they are wholly or partly dependent on the workman at the time of his death.

What is the position herein? It is in evidence that the appellant is not the widowed mother. She admitted that her husband is alive. She is only entitled to compensation if she was wholly or in part dependent on the earnings of the deceased. The widow of the deceased had stated before the Commissioner that the appellant and her husband were living separately. It is in evidence that the appellant and her husband are earning their livelihood by working as a labourer. The deceased himself was working as a labourer. The totality of facts, therefore, clearly indicates that it cannot be held on basis of the evidence that appellant was dependent wholly or in part on earnings of the deceased. Therefore, the appellant indeed cannot be held entitled for any compensation.

For these reasons, the appeal being without merit must fail and is dismissed.