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BANI ALIAS GIRISH CHANDRA MENDIRATTA & ANOTHER versus SUNDER LAL ALIAS SUNDER SINGH & ANOTHER

High Court of Judicature at Allahabad

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Bani Alias Girish Chandra Mendiratta & Another v. Sunder Lal Alias Sunder Singh & Another - FIRST APPEAL FROM ORDER No. 382 of 1995 [2006] RD-AH 6 (1 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

First Appeal From Order No.382 of  1995

Bani @ Girish Chandra and another  Vs. Sunder Lal @ Sunder Singh and another.

Connected with

First Appeal From Order No.383 of  1995

Bani @ Girish Chandra and another  Vs. Bhagwan Das and another.

Hon.Prakash Krishna, J

Common questions of fact and law are involved in the above two appeals and were also heard together. These appeals are therefore being disposed of by a common judgment. Both appeals arise out of two separate orders both dated 24.2.1995 passed in cases no.1 and 2 under section 23 of the Workmen's Compensation Act on identical facts.

The facts of the case are as follows:-

The claimant respondents filed a claim petition on the allegations that the appellants no.1 and 2 have shops on the ground floor and the first floor at Station Road (Ujhani). These shops are connected by a stair case. The appellant no.1 on 5th November 1991was selling fire works on the occasion of Deepavali in front of a shop. All of a sudden a fire broke, with the result the shop was gutted in fire. In that fire Joginder, son of the claimant respondents no.1 and 2 in F.A.F.O. No.382 and Raju son of   claimant-respondents in F.A.F.O. No.383 died on account of fire. These persons were employed as workman in the shop  of  fire works. Their dead bodies were recovered by the police after lodging of an F.I.R. under section 279/304A/427/437 I.P.C. and Section 5 of the Explosive Act. The police recovered bodies of the aforesaid two labourers after breaking the shutter of the shop. The claimants claimed themselves as dependants on the respective  workman. The deceased workmen were employed on a monthly sum of Rs.700/- per month. Both were 15 years old at the time of their death.

The      Workmen's    Compensation Commissioner/Collector, Badaun awarded a sum of Rs.63697.20 as compensation to the claimants in each case. The said orders are under challenge in this Court by the employers.

Heard the counsel for the parties and perused the record. The following two substantial questions of law were framed at the time of the admission of the appeal:-

1. Whether the claimants are dependants of the deceased within the meaning of section 2 (d) of the Workmen's Compensation Act,1923?

2. Whether the deceased was a workman within the meaning of section 2 ( n ) of the Workmen's Compensation Act 1923?

The leaned counsel for the appellant pressed the appeal on the aforesaid substantial questions of law. He submitted that the Workmen's Compensation Commissioner committed substantial illegality in awarding compensation to the claimant, who are according to their own showing parents of the deceased workman. It was submitted that there is no evidence on record to show that the claimants were dependants within the meaning of Section 2 (d) of the Workmen's Compensation Act. Reliance has been placed upon a judgment of Division Bench of this Court in the case of G.N. Bhandari vs. Railway Administration AIR 1983 Allahabad 150.

Section 2(d) of the Workmen's Compensation Act 1923 defines the word ''dependant'. The relevant portion of section 2 (d) is reproduced below :-

"  ''Dependant'  means any of the following relatives of a deceased workman, namely -

(i) ..........................

(ii) ...............................

(iii) If wholly or in part dependant on the earnings of the workman at the time of his death...................  .

(a) ...................................

(b) a parent other than a widowed mother,

(c) ......................................

(d) ......................................

(e) ......................................

(f) ........................................

(g) ........................................

(h) .........................................

From the above it would appear that in order to be entitled to claim compensation it is necessary that the claimant must be wholly or in part dependant on the earnings of the workman at the time of his death. In the case of G.N. Bhandari vs. Railway Administration (supra),  it has been held that there being no evidence on the record  that the appellant was dependant on the earnings of his son Shri Vinod Kumar Bhandari the appellant does not qualify the requirement of (2) (d) (iii) (b) of the Workmen's Compensation Act, 1923. On the facts of that case it was held that in the absence of evidence that  the parent was dependant on the earnings of the deceased Vinod Kumar Bhandari it was held that the parents are not entitled for any compensation. That case arose out of the dismissal of Claim Petition filed by the parents before the Ad hoc (Claims) Commissioner under section 82-A of the Railways Act. The case of the claimants was that the deceased was 22 years of age and while travelling in the train, the train met with an accident and he died on the spot. The deceased was returning after attending an interview. The court took the view that the deceased Vinod Kumar was not employed at the time when the accident took place. Therefore, in absence of any evidence that the appellant was dependant on the earning of his deceased son, he did not qualify the requirement of sections 2(d) (iii) (b) of the Act.

That case is distinguishable on the facts. In the present case the deceased was minor and was employed and getting Rs.700/- salary per month. In such  circumstances the Madras High Court in the case of  The Management Boys Town society vs. V.Palani 1997 (77) Indian Factories and Labour Reports 229 has held that when the deceased was earning Rs.600/- per month and was unmarried and there is no evidence that the parents were not getting any financial help from the deceased, there is no one on whom the deceased would spend his earning, the benefits of his earnings having been enjoyed by the parents either wholly or in part. In such circumstances it cannot be said that the parents are not dependants to disentitle them for the compensation payable by the employer on the death of the deceased.

It has been held that where the deceased was unmarried son of his parents and the parents were enjoying his earnings either wholly or in parts, the parents were dependant and entitled to compensation. Reliance has been placed on the earlier judgments. In the present case the Workmen's Compensation Commissioner under issues no.6 and 7 has held that the claimants were dependants on the earning of the deceased. They are legal heirs of the deceased and are entitled for the compensation amount. Smt. Sumitra Devi, the mother of the deceased (claimant-respondent no.2) was examined as PW/1. She has stated that Joginder was meeting their expenses and they were financially dependant upon the earning of Joginder.

I have examined her statement. There is no cross examination on this point from the side of the present appellants. The entire cross examination is confined towards the recovery of the body of the deceased by the police after breaking the shutter of the shop. She has narrated that when her son did not return to home on the fateful day. On  hearing news of fire in the market she rushed to the spot. Four or five shops of fire works were burnt and the police was trying to control the fire. There was a huge crowd.  On enquiry from Krishan Lal and Bani about her son, they informed that he went to home. She returned to home but could not find out the son. She again reached to the spot and by that time the appellants went away after putting locks in their shops. Then she took the help of the police and the police recovered the dead body after breaking  the shutter of shops. There is nothing to disbelieve the statement of the claimant respondent no.2 on this point. The appellants have not produced any evidence otherwise. Therefore the finding recorded by the Workmen's Compensation Commissioner on this point is based upon the evidence on record.

In the result I do not find any error in the order of the tribunal holding that the claimant respondents were dependants within the meaning of section 2(d) (iii) (b) of the Act on the earning of their minor deceased son.

The next point is whether the deceased was a workman within the meaning of Section 2 (n) of the Workmen's Compensation Act. The learned counsel submitted that the workman has been defined under section 2 (n) of the Act. The relevant portion of the definition of "workman" defines "workman" which  means any person (other than a person ) whose employment is of casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is -

(i)....................................................

(ii)...................................................

employed in any such capacity as is specified in schedule (ii), whether contract of employment was made before or after the passing of this Act and there such contract is expressed or employed, oral or in writing; but does not include any person working in the capacity of a member of Armed Forced of the Union and any reference to a workman who has been insured shall, where the workman is dead, include a reference to his dependants on any of them.

Issue no.1 before the Workmen's Compensation Commissioner was whether the deceased was "workman"  within the meaning of Workmen's Compensation Act. The case of the employer appellant was that the deceased was not working in his shop. On the other hand the case of the claimants was that the deceased was employed as a workman in the shop of the employer. The claimants have examined PW/1 Smt. Sumitra Devi, PW/2 Netram, PW/4 Ramdhan in support of the case. These witnesses have deposed that the deceased Joginer and Raju were working as workman in the shop of Bani and Kishan Lal who are father and son. These persons were running two shops one on the ground floor and another on the first floor. Joginder was employed on a monthly salary of Rs.700/-. On the other hand the DW/1 examined himself in support of the case that the deceased were not employed either in his shop or in the shop of his son Bani. In the cross examination he has admitted that the dead bodies of these two persons namely Joginder  and Raju were recovered from their shops. He has also admitted that the fire works were being sold in front of his shop but he did not lodge any report to the police. He has stated  that he and his son both were running their respective shops without help of any servant, employee or workman. The case of the appellant was of total denial of employment of deceased Joginder and Raju. In the present appeals a question has been sought to be raised that since there is no finding that more than 20 persons were employed in the business, the deceased were not workman as defined under the Act. Emphasis was laid on Schedule - II to the Workmen's Compensation Act on entry No.III. On the other hand the counsel for the respondents has placed reliance upon the entry No.IV to Schedule No.II which reads as under:-

"Employed in the manufacture or handling of explosive in connection with the employer's trade or business".

Before the Workmen's Compensation Commissioner the employer did not come out with the plea that the deceased were not workmen as 20 or more persons were not employed, which is the requirement of the Entry No.III of Schedule - II, to hold a person workman under the aforesaid entry. The aforesaid plea raised by the appellant in the present appeal depends upon a question of fact. Since this question of  fact was not pleaded or proved before the authority below the appellant cannot be permitted to raise a disputed question of fact in the appeal or  place reliance upon the entry no.III of Schedule -II. PW/1 Smt. Sumitra has stated that Kishan Lal and Bani had put the fire works on sale in front of their shops on the fateful day. The fire works exploded on account of  fire in the evening and her son who was employed by Kishan Lal and Bani died in   course of employment on that day. This part of the statement of PW/1 that the present appellants put the fire works for sale in front of their shops on the road on the occasion of the Deepawali has not been denied by Kishan Lal DW/1 in his statement. His statement is that of total denial about the engagement and employment of Joginder and Raju.

In view of the above evidence the Workmen's Compensation Commissioner has rightly come to the conclusion that the deceased Joginder and Raju were employed as workmen by the present appellants in their shops. The findings recorded by the Workmen's Compensation Commissioner is based on evidence.

I do not find any substantial error in the order of the Workmen's Compensation Commissioner.

In the result there is no substantial error in the order of the Workmen's Compensation Commissioner. Both the appeals lack merit. Both the appeals are dismissed.  But no order as to costs.

Dt. September, 04

LBY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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