The Divisional Manager vs Basappa S/O Chanabasappa ...
2022 Latest Caselaw 3657 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 4 T H DAY OF MARCH, 2022

                         BEFORE

 THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

                 M.F.A.No.20968/2013 (WC)

BETWEEN:

THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD.
ENKAY COMPLEX, HUBLI,
REP. BY ITS REGIONAL OFFICE,
SUMANGALA COMPLEX, II FLOOR,
LAMINGTON ROAD, HUBLI,
REP. BY ITS ASSISTANT MANAGER,
                                            ...APPELLANT
(BY SRI NAGANGOUDA R. KUPPELUR, ADVOCATE)

AND :

1.      BASAPPA S/O. CHANABASAPPA HAMSABHAVI,
        AGE: MAJOR, R/O.ALADAKATTI VILLAGE,
        TQ: AND DIST: HAVERI.

2.      SMT KAVITA @ PUSHPA W/O KUSHALGOUDA BELKERI,
        AGE: MAJOR, R/O.ALADAKATTI VILLAGE,
        TQ: AND DIST: HAVERI.

3.   SRI SHIVAYOGI S/O. BASALINGAPPA ANISHETTER,
     AGE: MAJOR, R/O.ALADAKATTI VILLAGE,
     TQ: AND DIST: HAVERI,
     (OWNER OF THE MARUTI OMNI CAR NO.KA25/N-2539)
                                         ..RESPONDENTS
(BY SRI CHANDRASHEKHAR M. HOSAMANI, ADVOCATE FOR R-1)
(NOTICE TO RESPONDENT NOS.2 AND 3-SERVED &
UNREPRESENTED)
                            :2:



     THIS M.F.A. IS FILED U/SEC.30(1) OF THE W.C. ACT,
1923, AGAINST THE JUDGMENT AND AWARD DATED 27.11.2012
PASSED IN W.C.F.NO.101/2009 ON THE FILE OF THE LABOUR
OFFICER     AND     COMMISSIONER      FOR      WORKMEN'S
COMPENSATION, HAVERI, DISTRICT HAVERI, AWARDING THE
COMPENSATION OF RS.4,27,140/- WITH INTEREST AT THE RATE
OF 12% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal has been filed challenging an award of

Rs.4,27,140/- on a claim which had been initially made by

Smt Neelavva @ Basavva Hamsabhavi as the dependant of

the deceased-Kodeppa, who was her son.

2. It was the case of the original claimant-Smt

Neelavva that her son-Kodeppa had met with an accident

during the course of his employment, as a result of which,

he lost his life. It was her case that being dependant of

Kodeppa, she was entitled to seek for compensation.

3. During pendency of the claim proceedings, Smt

Neelavva died and her other son and daughter were brought

on record as her legal representatives. The Commissioner

ultimately held that there was an accident, for which, the

employer was liable for compensation and accordingly

directed the employer to pay sum of Rs.4,27,140/-.

4. In this appeal, the quantum awarded or the factum

of the accident is not in dispute. The only contention

advanced by the Insurance Company is that the legal heirs

of Smt Neelavva could not have continued the claim and

could not have got the benefit of the order of the

Commissioner granting compensation.

5. This argument is based on the principle that under

the Employees Compensation Act, 1923 (for short, 'the E.C.

Act') only those dependants who are dependant on the

income of the deceased are entitled to claim compensation.

According to the Insurance Company since the legal heirs of

Smt Neelavva do not come within the purview of the

definition of 'Dependant' under Section 2(d) of the E.C.Act,

the Commissioner could not have given them the benefit of

the compensation.

6. As noticed above, the claim was made by the

mother of the deceased i.e., Neelavva. Section 2(d)(i)

categorically states that a widowed mother is a dependant

of a deceased employee. It is to be stated here that the

class of relatives specified in Section 2 (d) (i) do not require

them to be dependant on the income of the deceased. In

other words, the class of relatives specified in Section

2(d)(i) are considered, in law, to be dependants, even if,

they are not actually depending on the earnings of the

deceased employee. Thus, as a consequence, even if,

Neelavva was not actually depending on the earnings of the

Kodeppa, she would still be entitled for compensation for

Kodeppa's death during the course of his employment as his

dependant.

7. The other son and daughter of Smt Neelavva who

came on record as the legal representatives were basically

representing the estate of the deceased-Neelavva. If,

Neelavva was entitled to any sum as compensation under

the Employees Compensation Act, that amount would

become her estate and by virtue of being her legal heirs,

they were entitled to not only represent the estate of the

deceased but also secure the benefits that the deceased-

dependant was entitled to.

8. In this regard Section 306 of the Indian Succession

Act, 1925 would become relevant. Section 306 of the Indian

Succession Act, reads as follows :

"306. Demands and rights of action of or

against deceased survive to and against executor or

administrator.--

All demands whatsoever and all rights to

prosecute or defend any action or special proceeding

existing in favour of or against a person at the time

of his decease, survive to and against his executors

or administrators; except causes of action for

defamation, assault, as defined in the Indian Penal

Code, 1860 or other personal injuries not causing the

death of the party; and except also cases where,

after the death of the party, the relief sought could

not be enjoyed or granting it would be nugatory. "

9. As could be seen from Section 306, all rights to

prosecute which exist in favour of a person at the time of

his death, survive to his executors or administrators, except

in two situations.

10. The first would be when the causes of action are

for defamation, assault or personal injuries not causing the

death of the person.

11. The second would be when on the death of the

party, the relief sought for by him cannot be enjoyed or

would be nugatory.

12. The intent of the law behind such a provision is

clear that a cause of action which is personal to the party

cannot survive him. If on the other hand, the cause of

action is not personal, that cause of action would survive

him.

13. The right that Neelavva possessed to prosecute a

claim under the E.C.Act, was a legal right that she

possessed and the same cannot be termed as a personal

right which would not survive her death. The claim made by

her was her entitlement in law to receive compensation for

the death of her son and this would thus become her estate.

This entitlement of hers, on her death, would survive to her

son and her daughter as it would form a part of her estate.

14. It is to be stated here that if Neelavva had not

made a claim for compensation, then on her death, her

legal heirs could not have made a claim on her behalf. It is

only because, Neelavva had made a claim, her two children

possessed the right to continue the claim.

15. It is to be noticed here that the son and daughter

of Neelavva were not claiming compensation as dependants

of deceased-Kodeppa, but they were essentially prosecuting

the claim that their mother had initiated. If, in law, the

claim of the mother survives to her two children, they would

automatically become entitled to pursue the claim and reap

the benefits of the said claim.

16. The disentitlement of the son and daughter of

Neelavva to seek for compensation as dependants under

the E.C. Act, would not be a bar for them to claim

compensation as the legal heirs of their dependant mother-

Neelavva. I therefore, hold that the order of the

Commissioner awarding compensation to Neelavva,

represented by her son and daughter as her legal

representative, cannot be found fault with.

17. I find no substantial question of law arising for

consideration in this appeal and the same is accordingly

dismissed.

The amount in deposit shall be transmitted to the

Commissioner for disbursement forthwith.

SD JUDGE ckk