[Cites 5, Cited by 0]
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.
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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
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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,
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C/FA/765/2009 JUDGMENT DATED: 04/12/2025
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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
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(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
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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
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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
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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
