Gujarat High Court
Kokilaben Dineshkumar Chaudhri vs Divisional Controller on 26 November, 2021
Bench: A.G.Uraizee
C/FA/3432/2021 ORDER DATED: 26/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3432 of 2021
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KOKILABEN DINESHKUMAR CHAUDHRI
Versus
DIVISIONAL CONTROLLER
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Appearance:
ANURADHA G RATHOD(7717) for the Appellant(s) No. 1,2
MR GK RATHOD(2386) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 26/11/2021
ORAL ORDER
1. This is an appeal under Section 30 of the Workmen
Compensation Act, 1923 ('W.C. Act' for short) at the
instance of the appellants - Corporation to assail the order
of the Commissioner for Workmen's Compensation, Labour
Court, Mahesana in Workmen's Compensation Application
(Distribution) No.4/2019.
2. The facts giving rise to the appeal are no many and
move in a narrow compass.
3. The application being W.C. (Distribution) Application
No.4/2019 came to be instituted at the instance of the
appellants in the Labour Court and Ex Officio
Commissioner for Employee's Compensation, Mahesana for
death of workman Sureshkumar P. Chaudhary. The
deceased - Sureshkumar P. Chaudhary, a bachelor, was
working as a driver with the respondent No.1 - ST
Corporation. On 13.05.2018, he died of sudden pain in the
chest during the course of his employment. The appellants,
who happens to be his mother and brother, filed the
aforesaid claim application before the Commissioner for
Compensation, unfortunately, during the pendency of the
C/FA/3432/2021 ORDER DATED: 26/11/2021
application, appellant No.1 - Kokilaben Dineshkumar
Chaudhary, mother of the deceased workman, passed
away. The appellant No.2, therefore, being the brother of
the deceased prosecuted the claim petition before the
Commissioner. The Commissioner, by the impugned order
dated 17.05.2019 dismissed the application on the ground
that the appellant No.2 cannot be considered as dependent
of the deceased under Section 2(1)(d) of the W.C. Act. The
appellants are not happy with the impugned order, and
therefore, this appeal.
4. I have heard Mr. P.Y. Diveshwar, learned advocate
for Mr. A.G. Rathod, learned advocate for the appellant.
5. Mr. Diveshwar, learned advocate vehemently submits
that the deceased was a bachelor and he and the
appellants were living together as a HOF. It is his further
submission that the appellant No.2 was nominated by
deceased to receive gratuity and provident fund. It is his
further submission that on the basis of the decision of the
Bombay High Court rendered ind First Appeal No.720/2015
between Royal Sundaram Alliance Insurance Company
Limited v. Madhu @ Mahadev S/o Govindrao Newade
(Died) and decision rendered in Writ-Petition No.8899 of
2012 between Shri Anil Dattatraya Kulkarni v. State of
Maharashtra and another that the appellant No.2 being
brother of the deceased clearly falls under the category of
dependent, and therefore, the Commissioner has committed
an error in dismissing the application. He, therefore, urges
that the appeal deserves consideration as it involves
substantial question of law.
C/FA/3432/2021 ORDER DATED: 26/11/2021
6. I have given my thoughtful consideration to the
submissions canvassed by Mr. Diveshwar, learned advocate.
7. Section 2(1)(d) of W.C. Act reads as under:-
"Section 2(1)(d) in The Workmen' s Compensation Act, 1923
(d) dependant" means any of the following relatives of a deceased
workman, namely:-
(i)a widow, a minor legitimate son, and 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 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 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 workman is alive;."
8. It is thus eminently clear from the definition of
dependent has content in Section 2(1)(d) of the W.C. Act
that brother of workman does not fall within the category
of dependent. I am, therefore, of the considered view that
the Commissioner has not committed an error much less
error of law in rejecting the application for compensation
on the ground of locus standy of appellant No.2.
9. Reliance on the decision of the Supreme Court in the
case of Royal Sundaram (supra) is misplaced on the
contrary observations made in para-5 of the judgment goes
against the appellants. Para-5 reads as under:-
C/FA/3432/2021 ORDER DATED: 26/11/2021
"5. The scheme of the said Act therefore indicates that in
case of death of an employee during the course of
employment, it is for his/her dependents to seek compensation.
In case of injuries suffered, the employee himself/herself can
claim compensation. The term "dependent" would have to be
considered in the context of compensation being sought on
behalf of a deceased employee. In that context therefore, if the
deceased employee is survived by any dependent as defined
under Section 2(1)(d) of the said Act, compensation can be
claimed by such dependent under provisions of the said Act.
However, if claim for compensation is made by an injured
employee then there is no requirement under the said Act that
it is only a dependent as defined by Section 2(1)(d) of the said
Act who can be impleaded as a legal heir on the death of the
injured employee. If the right to sue survives after the death of
an injured employee who has made a claim for compensation
then there is no bar under the said Act for his/her legal
representative to continue said proceedings."
10. It is thus vividly clear from the aforesaid observation
that the scenario would have been different had the
workman himself had filed the claim application before the
Commissioner, and therefore, during the pendency of the
application had had passed away. Under this
circumstances, right to sue would have survive in favour
of the appellant No.2 after the death of the workman. In
the present case, it is admitted fact that the claim
application was filed by the appellant No.1 - mother and
the appellant No.2 - brother of the deceased. Appellant
No.1 has passed away during the pendency of the
application, and therefore, appellant No.2 - brother alone
remained. Under these circumstances, since, their brother
is not prosecuted as one of the dependents under Section
2(1)(d) of the W.C. Act, the Commissioner is justified in
dismissing the claim petition.
C/FA/3432/2021 ORDER DATED: 26/11/2021
11. Another decision of the Bombay High Court in case
of Anil Dattatraya Kulkarni (supra) is also not applicable.
It is a case emanating from the provisions of Maharashtra
Civil Services (Medical Attendance) Rules, 1961 for
reimbursement of medical expenses incurred by the
petitioner for the treatment of his mother. These
judgments is short of facts, is not applicable to the facts of
the present case and is therefore of no avail to the
appellants.
12. For the foregoing reasons, the appeal fails and is
hereby dismissed at the threshold.
(A.G.URAIZEE, J)
Manoj
