Gujarat High Court
Commissioner Jamnagar Municipal ... vs Jayantibhai Chhanabhai L.R.Of ... on 4 December, 2025
NEUTRAL CITATION
C/FA/765/2009 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 765 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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COMMISSIONER JAMNAGAR MUNICIPAL CORPORATION
Versus
JAYANTIBHAI CHHANABHAI L.R.OF BHANUBEN MOHANABHAI
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR TEJAS D SHUKLA(5312) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 04/12/2025
ORAL JUDGMENT
1. The present appeal is filed under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter, referred to as 'the Act'), by the appellant, original opponent, assailing the judgment and award dated 29.11.2008 passed by the learned Commissioner, Employee's Compensation Labour Court, Jamnagar, in Workmen Fatal Distribution No. 20 of 2004. Page 1 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025
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2. Heard learned advocate Ms. R.R. Gautam for learned advocate Mr. H.S. Munshaw for the appellant and learned advocate Mr. Tejas Shukla for the respondent.
3. The brief facts of the case are as under:
3.1 As per the claim application of the claimant, the mother of claimant, Bhanuben Mohanbhai, was working as a Class -
4 Officer (as a Safai Kamdar) with the appellant -
Corporation. On 14.08.2004, the deceased, during the course of employment, expired due to electric-shock. The Corporation deposited Rs.50,000/- as compensation under protest. The claimants claimed compensation of Rs.3,51,080/- with interest and penalty from the Corporation. The present appellant, original opponent appeared and contested the claim application by filing written statement at Exhibit - 10 and denied the cause of death due to electric- shock. After considering the oral, as well as, documentary evidence, learned Commissioner allowed the claim Page 2 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025 NEUTRAL CITATION C/FA/765/2009 JUDGMENT DATED: 04/12/2025 undefined application by directing the Corporation to pay Rs.3,51,080/- with interest at the rate of 12% per annum, coupled with penalty at the rate of 10%.
3.2 Being aggrieved and dissatisfied with the judgment and award, the appellant - Corporation has filed the present appeal.
4. Learned advocate for the appellant, at the outset, contended that the claimant is not falling within the definition of dependant as contemplated under Section 2(1)(d) of the Workmen's Compensation Act, 1923. It is contended that the claimant - son was major on the date of the application, and was serving with the Corporation as a Class - 4 Officer (Safai Kamdar) and therefore, the claimant is not a dependant. It is further contended that in the cross-examination of the claimant. Claimant has admitted that he is serving as a Safai Kamdar with the Corporation. Learned advocate for the appellant has proposed the following substantial questions of law for consideration:
(1) In the facts and circumstances of the case, whether the son, Page 3 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025 NEUTRAL CITATION C/FA/765/2009 JUDGMENT DATED: 04/12/2025 undefined who is not dependant on the mother, can file claim under the Workmen's Compensation Act, 1923?
(2) Whether, as per the definition of dependant, defined in Section(d) of the Workmen's Compensation Act, 1923, the son a major and doing service can be said to be dependant? And which application is maintainable filed by the son? (3) Whether, in the facts and circumstances of the case, the age of late Bhanuben can be said to be 43 years at the time of her death?
(4) In the facts and circumstances of the case, when the amount of Rs. 50,000/- was deposited by the appellant - Corporation before the Labour Court before filing the claim petition by the respondent, whether penalty under Section 4A of the Act can be awarded?
5. It is submitted that the appellant is challenging the impugned award on the ground that the claimant does not fall within the definition of dependant and therefore, claimant is not entitled to claim compensation under Workmen's Compensation Act, 1923. Hence, the appeal may be allowed by quashing and setting aside the impugned judgment and award. Except above, no other submissions were canvassed by learned advocate for the appellant.
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6. Per contra, learned advocate for the respondent - claimant, while considering the judgment and award, fairly submitted that the respondent is in the employment of the Corporation and, it is contended that the learned Trial Court has observed in the order that the claimant is dependent upon the salary of his mother and therefore, the claimant falls within the definition of dependant. Except above, no other submissions were canvassed by learned advocate for the respondent.
7. I have considered the submissions canvassed by learned advocates for the parties and perused the record and proceedings. The bone of contentions raised by learned advocate for the appellant is that the claimant, Jayantibhai Channabhai does not fall within the definition of dependant and therefore, the claim application deserves to be rejected as not maintainable. To decide the controversy, it would be apposite to reproduce Section 2(1)(d) of the Workmen's Compensation Act, 1923:
[(d) "dependant" means any of the following relatives of a deceased [employee], namely:--
(i) a widow, a minor [legitimate or adopted] son, and unmarried [legitimate or adopted] daughter, or a widowed mother; and Page 5 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025 NEUTRAL CITATION C/FA/765/2009 JUDGMENT DATED: 04/12/2025 undefined
(ii) if wholly dependent on the earnings of the [employee] 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 [employee] 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 a 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 [employee] is alive.] [Explanation.--For the purpose of sub-clause (ii) and items (f) and (g) of sub-clause (iii), references to a son, daughter or child include an adopted son, daughter or child respectively;
The condition No.(ii) of Clause (d) of Sub-Section (1) of Section 2 of the Act, mandates that a person wholly dependent on the earnings of the insured person at the time of death, he can be said to be a dependant. Dependency of an applicant is established when it is demonstrated that the claimant looked to or relied upon the deceased for support and maintenance. The onus lies upon the applicant to prove that the deceased provided assistance towards the applicant's future living expenses. In the present case, an undisputed fact surfacing on record is that the claimant was Page 6 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025 NEUTRAL CITATION C/FA/765/2009 JUDGMENT DATED: 04/12/2025 undefined major and was having his independent income by serving in Corporation as a permanent Safai Kamdar on the date of accident of his mother.
In the given set of facts, the question whether the claimant is dependent upon the income of his deceased mother, can be ascertained by perusal of the claim application. In the application for compensation, firstly, it is not the averment of the claimant that he is wholly or partly dependent upon the income of his mother and claimant has failed to show substantive reliance on the earnings of his mother. An admitted fact comes out from the cross- examination of the claimant, recorded at Exhibit - 13A that he is serving as a Kayami Safai kamdar in the Municipal Corporation. This admitted fact is sufficient to establish that the claimant does not fall within the definition of dependant as envisaged in Section 2(1)(d) of the Workmen's Compensation Act, 1923.
8. Learned advocate for the respondent - claimant contended that the claimant is a legal representative and a dependant of deceased employee. Considering the beneficial legislation, the Page 7 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025 NEUTRAL CITATION C/FA/765/2009 JUDGMENT DATED: 04/12/2025 undefined compensation which has been awarded by learned Commissioner be upheld. Claimant, being a sole legal representative, is not the only criteria in defining dependency. Over and above being a legal representative, the claimant must show that he/she is dependent upon the income of the employee. Since the claimant, in the given set of facts, could not be treated as dependant, within the meaning of section 2(1)(d) of the act, learned Commissioner, in my opinion, has committed an error of law. Finding recorded by learned Commissioner is perverse and against the settled proposition of law. When a finding of fact is perverse, the same shall assume the character of a substantial question of law. A finding of fact arrived at, without there being any evidence, would give rise to a substantial question of law. The High Court, under section 30 of the act, can interfere with erroneous finding of fact, which has been arrived at by the Court below by ignoring evidence and other circumstances.
9. In view of the above stated facts and circumstances, the appeal deserves to be allowed, and the same is allowed. The Page 8 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025 NEUTRAL CITATION C/FA/765/2009 JUDGMENT DATED: 04/12/2025 undefined claim application is hereby, quashed and set aside and the same is hereby, dismissed. Considering the fact that the accident is arising out of and in the course of employment, the amount of Rs.50,000/-, which has been deposited by the Corporation shall be disbursed in favour of the applicant after following due procedure.
10. Record and proceedings, if any, be sent back to the concerned Court / Tribunal.
(D. M. DESAI,J) MUSKAN Page 9 of 9 Uploaded by MUSKAN AJAY MENON(HC02359) on Thu Dec 11 2025 Downloaded on : Thu Dec 11 20:33:02 IST 2025