The Superintending Engineering, Tiruvanamalai Electricity System, North Arcot District vs S. Kannaiyan and 2 others

Appeal filed against the order passed by the Commissioner for Workmen''s compensation (Deputy Commissioner of Labour-I), Madras in

W.C.No.84 of 1987, dated 16.6.1988.

The first opposite party, namely the Superintending Engineer, Thiruvanamalai Electricity System, North Arcot District, is the appellant.

One B.Kannaiyan has filed the application for compensation alleging that late Arasakumar is the son of the applicant, who was employed under

a contractor of first opposite party, namely the Superintending Engineer, Thiruvanamalai Electricity System, Thiruvanamalai, that on 14.9.1983

while the workman was on duty and was doing the work of erection of poles he got electrocuted and died as a result of the injuries sustained

during the accident which arose out of and in the course of employment of the workman, that he died on that day itself, that the applicant is

therefore entitled to get compensation as per the provisions of the Workmen''s Compensation Act, 1923, that the late workman was being paid a

sum of Rs.20 per day, that he was 20 years old, that he was helping the applicant to maintain there family, that the applicant is therefore a

dependent and that therefore he is entitled to compensation of Rs.50,000.

The claim has been laid against (1) Superintending Engineer, Thiruvanamalai Electricity System, North Arcot District; and (2) Vijayakumar,

contractor of the first opposite party; and (3) Regional Chief Engineer, Tamil Nadu Electricity Board, Vellore.

The first opposite party, namely the Superintending Engineer, filed a counter contending that the applicant is not a dependent within the meaning

of the Act, that the applicant is working as a foreman in the Tamil Nadu Electricity Board itself, that he is getting a salary of Rs.1,653 per month,

that it is false to state that late Arasakumar was employed under the first opposite party, that the first opposite party was not aware as to whether

Arasakumar was employed by its contractor, that any how there was an agreement between the contractor and the opposite party under which the

compensation payable to a workman is to be paid only by the contractor and not by the Board, that Vijayakumar, contractor, was employed to

carry out certain line works in Kilpannatur, Sub Division of the Electricity Board, that the deceased has not taken precautionary measures which

seems to have been resulted in his death, that anyhow the contractor as per the agreement is liable to pay compensation payable under the

Workmen''s Compensation Act, that if the first opposite party is liable to pay compensation to the applicant, it is entitled to realise the same from

the contractor and that the claim against this opposite party may be dismissed.

The second opposite party filed a counter stating that late workman Arasakumar was employed by him for executing the contract obtained from

the Tamil Nadu Electricity Board, that the work was carried out for and behalf of Tamil Nadu Electricity Board, that the Electricity Board alone is

liable to pay the compensation, and that the claim may be dismissed against him.

The third opposite party was impleaded because the first opposite party also pleaded that he has no power to grant the compensation exceeding

a sum of Rs.25,000.

The Commissioner for workmen''s compensation after considering the submissions made on behalf of both sides, finally passed an order

awarding a sum of Rs.19,200 as compensation payable by the first opposite party, namely the Superintending Engineer, Thiruvanamalai Electricity

System, Thiruvanamalai, North Arcot District.

Aggrieved at the said order passed by the Commissioner for Workmen''s Compensation the first opposite party, namely the Superintending

Engineer, Thiruvanamalai Electricity System, Thiruvanamalai, North Arcot District, has come with this appeal.

The point for consideration is:

Whether the order passed by the commissioner for workmen''s compensation is liable to be set aside for all or any of the reasons submitted by the

appellant?

The point:-

It is not in dispute that one K.Arasakumar, son of the first claimant Kannaiyan was employed as a helper by the contractor of the first respondent,

who was entrusted with the work of some line work in connection with erection of RCC poles for consumers of the Electricity board in

Kilpennatur Sub Division of the first opposite party. It is also further not disputed that in the accident that arose while workman was in the course

of the employment he got electrocuted and died on the same day at the government Hospital. The main point on which the order is resisted is that

the applicant is not a ''dependent'' within the meaning of the Workmen''s Compensation Act and therefore not entitled to any compensation.

Section 2(1)(d) reads as under:-

Definitions-(1) In this Act, unless there is anything repugnant in the subject or context.

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

(i) a widow, a minor legitimate son, an unmarried legitimate 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 dependant on the earnings of the workman at the time of his death

(a) widower,

(b) a parent other than a widowed mother.

A bare reading of clause (1) of sub-section (l)(d) of section 2 reveals that a widow, a minor legitimate son, an unmarried legitimate daughter, or a

widowed mother are entitled to compensation under the Act on account of the death of a workman who dies while on duty in the course of

employment irrespective of the fact, whether they are dependant on the workman or not. Sub- clause (a) to clause (iii) to sub-section (1d)

provides that a widower would be entitled to compensation if he was wholly or in part dependent on the earnings of the workman at the time of his

death and sub-clause (b) thereto, provides that a parent other than a widowed mother is entitled to compensation on account of death of his or her

son if at the time of death of the workman, he or she was wholly or in part dependant on the earnings of a deceased son.

The learned counsel appearing for the respondent relies upon a ruling reported in Dhan Singh & others Vs. Prpsu Road Transport

Corporation, 1993 (I) ACC 3, a decision of Punjab and Harayana High Court, wherein the claim of the father in respect of death of his son arising

out of and in the course of the employment was allowed. But that was a case where the parents and others were found to be dependants on the

deceased workman when he died in the course of the accident.

In Charubala Saha and Others Vs. Eastern Railway Administration and Another, , the Calcutta high Court held that the ""dependants"" u/s 2(d)

means dependents at the time of death of the deceased workman. Therefore, in the application for compensation arising out of the death of the

deceased in a railway accident, it must be shown that the applicant claiming compensation was dependent upon the deceased at the time of his

death. Therefore, where in the application for compensation filed by the father of the deceased on behalf of himself, his wife and unmarried

daughter it was found that the applicants far from being ""sole dependents"" were not dependent at all nor even partly on the poor earnings of the

deceased, the claim case was rightly dismissed by the claims commissioner.

In G.N.Bhandari vs. The Railway Administration, New Delhi, AIR 1983 All 150, it was held, where the father claimed compensation on death

of his son in a train accident, the claim would not be maintainable when there was no material on record to show that the claimant was dependent

on the earnings of the deceased son. The father would not be entitled to get compensation even u/s 20 of the Hindu Adoptions and Maintenance

Act, apart from the fact that the section was not attracted.

In the present case in our hand, the claimant is a father who is admittedly employed as a foreman earnings a sum of Rs 1,653 and he is not

definitely as dependent upon the earnings of the deceased son. In fact deceased was only a worker under a contractor of Tamil Nadu Electricity

Board for only on daily wages and that too a small sum of Rs 10 per day. The father cannot also plead on behalf of his wife, namely the mother of

the workman or unmarried sister or brothers of him who are dependent workman. The present claim was filed for himself and he now cannot turn

round and say that he was not solely depending upon the earnings of the late workman, that his wife and unmarried daughter and son were partly

depending upon the earnings of the late workman. The family, namely the wife and children of the present claimants are fully depending upon the

earnings of the father and it cannot be stated that they were dependents of the deceased workman. Therefore, without considering all these facts

the commissioner for workmen''s compensation decided to award compensation and directed the first opposite party, namely the Tamil Nadu

Electricity Board to pay the compensation to the applicant. Therefore, the order cannot be sustained in view of the fact that the compensation on

account of death of late workman is not as a matter of right nor a legal heir is entitled to the same but the persons who are entitled for

compensation are only those persons who have been enumerated u/s 2(d) of the Workmen''s Compensation Act, 1923. Only a widowed mother,

minor son and unmarried daughter alone are entitled as a matter of right to claim compensation without proving their dependency on the late

workman. The other relations, namely a parent other than the widowed mother, brothers and sisters will have to prove their dependency before

claiming compensation. Therefore, the present claimant, who is the father of late workman gainfully employed and who is getting monthly income of

Rs1,653 is not at all a dependent on the late workman and therefore not entitled to compensation.

The Electricity Board also raised a contention that the deceased workman is not directly employed by them but was employed under a

contractor and therefore, the second respondent contractor has to pay the compensation. For this purpose they also rely upon an agreement

entered into between the Electricity Board and the second opposite party to the effect that in case of accident and death of any workman under

him, the contractor will be liable to pay the compensation and not the board and even if the board is made to pay compensation it is entitled to the

reimbursement of the said amount from the contractor. So far as the workmen''s compensation is concerned, even an employee under a contractor

is entitled to compensation from the principal employer and the contract entered into between the contractor and principal contractor cannot have

an overriding effect over and above the provisions of the Workmen''s Compensation Act. Therefore, on the ground that there is a contract

between the principal employer Board and the second opposite party, the claim of the applicant cannot be resisted. Therefore, on this ground, the

principal employer cannot avoid his liability to pay the compensation. However, in view of my findings the present claimant being the father not

being a dependant of the late workman is not entitled for compensation. On this point the appeal has to be allowed.

In the result, the appeal filed by the Tamil Nadu Electricity Board is allowed and the claim petition is dismissed, however, without costs.

Consequently C.M.P.No.540 of 1989 is closed.