Velliamma and another vs The Supdt. Mysore Good Mining Co., K.G.F. and another

Vasudevamurthy, J.—In Miscellaneous Appeal 111/50-51: This is an appeal against the order of the Commissioner for Workmen''s Compensation, K. G. P., rejecting the Appellant''s application for payment of compensation in F. C. No. 21/50-51 on his file. It appears that one Kongerapalli Munisami who was in the employ of the Mysore Gold Mining Company., died on account of a rock burst on 28-5-1950 while working in the Mines. The Company purporting to act u/s 8 (1) of the Mysore Workmen''s Compensation Act deposited with the Commissioner the amount of compensation payable by them act, riding to the Act together with an application under Form A as prescribed by Rule 6 (1) of the rules framed under that Act for the purpose of arranging payment of such compensation. Two persons, one claiming to be a younger brother and the other Chikkakka claiming to be a widow of the deceased, applied to the Commissioner for compensation. The Commissioner found that neither of them was a ''dependant'' entitled to compensation within the meaning of Section 2 (d) of the Act and he therefore rejected both their claims. And he directed that the compensation amount may be paid back to the employer as there were no other dependants to whom it could be paid. Subsequently the appellant claiming to be a dependant as being the widowed sister of the deceased filed an application in the present case for payment to her of compensation. That application was made on 12-9-1950, i.e., within one year of the accident. The Respondent Company, notified and opposed her application on the ground that as the claims to the compensation amount had already been duly heard and finally disposed of in the prior case No. 8/50-51 the present application was not maintainable in law. They also did not admit the relationship of the applicant to the deceased or that she was a ''dependant'' The learned Commissioner held, that in the previous case an order had been passed dismissing all the claims preferred before him after he had published a notification duly in his office. The existence of the present claimant was not at all disclosed it that time when she should have applied to be impleaded as a party in those proceedings in answer to that notification, and if that case could be re-opened, it would "lead to fresh dependants coming to and similar proceedings being taken interminably on each of such claims." The Act did not provide for such a possibility. He therefore rejected the claim of the Appellant.

Before us Mr. K. Rajagopala Rao, learned Counsel for the Respondent Company, has sought to support the order of the learned Commissioner. It is not shown how the order passed behind the back of the present claimant and without her being a party in the earlier proceedings, could bar her from making an application like the present; if she had been made a party and had been notified and had not pressed her claim, she might not be entitled to re-open those proceedings by means of a fresh application of her own. No authority has been quoted before us in support of the grounds on which the order of the Commissioner is based. But Mr. Rajagopala Rao contends that there is something in the rules framed u/s 31 of the Mysore Workmen''s Compensation Act which disentitles the Appellant from making the present application to the Commissioner. Under Clause (2) (c) of that section the Government may make rules prescribing the procedure to be followed by the Commissioners in the disposal of cases under the Act and by the parties in such cases. Under Rule 8 (1) of the rules so framed it is provided that a dependant 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. Such application is to be made in Form ''G'' annexed to the rules; and it is provided in that rule that no such application shall be entertained, unless the applicant certifies therein that he has requested the employer to deposit compensation and that the employer had refused or omitted to do so, It is not disputed that the claimant has not done so or that his application is not otherwise in order. This ground has not been taken expressly among the grounds urged in the written statement filed by the Company. But we have, however, permitted Mr. Rajagopala Rao to address arguments on this matter also as he represents that it raises a question of law which may be of somewhat frequent occurrence.

u/s 8 of the Mysore Workmen''s Compensation Act no payment of compensation in respect of a workman whose injury has resulted in death, shall be made otherwise than by deposit with the Commissioner, and no payment made directly by an employer shall be deemed to be payment of compensation. On the deposit of any money as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such dates as he may fix for determining the distribution of compensation. If the Commissioner is satisfied after such enquiry as he thinks necessary, that no dependant exists, he shall re-pay the balance of the money to the employer by whom it was paid. Rule 6 of the rules framed under the Act deals with the procedure to be followed in the matter of deposit of compensation. Under Rule 6 (1) an employer depositing compensation with the Commissioner under Sub-section (1) of Section 8 shall furnish therewith a statement in Form A. and also indicate whether he desires to be made a party to the distribution proceedings. That form does not provide for the furnishing of a list of dependants. Under Rule 7 the Commissioner shall cause to be displayed in a prominent position outside his office an accurate list of deposits received by him under Sub-section (1) of Section 8 together with the names and addresses of the depositors and of the workmen in respect of whose death or injury the deposits have been made. These two rules seem to apply where the employer deposits the ''compensation with the Commissioner. Rule 8 applies to applications by dependants to require the deposit by the employer of the compensation amount. Under Rule 8 (1) a dependant 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. He is no doubt required to certify, in it that he has requested the employer to deposit the compensation and that the employer has refused or omitted to do so. According to the Respondent the penalty for not making such a declaration is that the application should be rejected forthwith. Section 10 (1) of the Act, no doubt provides that no claim for compensation snail be entertained by a Commissioner unless notice of the accident has been given in the manner provided in that Act, as soon as practicable after the happenings of the accident, and unless the claim is preferred within one year of the occurrence of the accident or, in the case of death, within one year from the date of death. It is also provided in that section the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of an application if the claim is preferred in respect of the death of a workman if the workman died on the premises during the course of the employment, or if the employer had knowledge of the accident from any other source at or about the time when it occurred; and it is further provided in that section that the Commissioner may also entertain and decide any claim to compensation in any case notwithstanding that notice has act been given or the claim has not been preferred as provided in that sub-section if he is satisfied that the failure so to give notice or prefer the claim, as the case may be, was due to sufficient cause. If any rule framed by Government to carry out the purposes of the Act u/s 31 is contrary to the terms of the Act it would to that extent be ultra vires and without force. If we are to accept the contention of the Respondent it would mean that in spite of the power given to the Commissioner to entertain a claim even if no notice of it has been given, or if there is any defect or irregularity in such notice, it would be directly contrary to the provisos contained in the sub-clause to section 10. We think, therefore, that there is no substance in this contention also and the order of the Commissioner cannot be supported.

We allow this appeal, set aside the order of the learned Commissioner and remand the case for fresh disposal in accordance with law. The Respondent will pay the costs of the Appellant in this appeal (Advocate''s fee Rs. 25/-).

In Miscellaneous Appeal 112/50-51: For the reasons given above in Miscellaneous Appeal No. 111/50-51, this appeal is allowed, the order of the learned Commissioner is set aside and the case is remanded for fresh disposal in accordance with law. The Respondent will pay the costs of the Appellant in this appeal (Advocate''s fee Rs. 25/-).