Oral Judgment:
1. This appeal is directed against the order passed on 08/11/2011 in D.W.C.A. No.12/2009 filed under Section 8(4) of Workmen's Compensation Act, 1923 (for short, œthe Act, 1923?) by the Commissioner appointed under the Act, 1923 at Chandrapur and also the order passed on 20/9/2012 by the same Commissioner refusing to revise or modify the order dated 08/11/2011.
2. The case under the Act, 1923 arose because of death of Kishore Tode, who was at the time of his death, working as Senior Overman with Western Coal Fields, Sasti, Tahsil Ballarpur, District Chandrapur. It so happened that when he was performing his duty on 04/6/2009, a heap of sand collapsed and he got buried thereunder. He remained buried for a considerable period of time and it was only on 12/6/2009, his body could be recovered. He was, of course, found dead at that time. Since the accidental death occurred during the course of employment, the employer deposited an amount of Rs.3,51,080/- with the Commissioner as compensation payable under the Act, 1923 by accepting the liability of the employer therefor. The appellants herein, while appellant No.1 is widow and appellants No. 2 to 4 are children, being legal heirs and dependents of deceased Kishore Tode, filed an application under Section 8(4) of the Act, 1923 for distribution of the compensation amount. It was stated by the appellants that the respondent was the first wife of the deceased, but was divorced by the deceased on 22/5/1996 as per the usages and customs applicable to the Buddhist religion of which the parties herein are the followers. It was also submitted by the appellants that respondent Vandana had been staying separately from the deceased since 1996 till his death for a period of 14 years and with such long separation also, the sanctity of the relationship of husband and wife in between the respondent and deceased Kishore had come to an end. Appellant No.1 had performed marriage with deceased Kishore on 16/11/1997 as per the usages and customs applicable to the followers of Buddhist religion. Appellants No.2 to 4 are the children born out of this wedlock. The appellants submitted that they being the only dependents of the deceased Kishore, they were entitled to receive the compensation in its entirety.
3. After making an enquiry and hearing both the sides, learned Commissioner found that the appellants, being widow and children of the deceased Kishore respectively and the respondent being widow of deceased Kishore, were entitled to receive the amount of compensation and accordingly divided equally the compensation amount in two parts and directed payment of one portion to the appellants jointly and the remaining part to the respondent alone.
4. Since the appellants were not satisfied with this order, they moved an application under Section 8(8) of the Act, 1923 for variation of distribution order passed on 08/11/2011 before learned Commissioner, Chandrapur. However, learned Commissioner did not find any substance therein and noting that there being no change of circumstance or any fraudulent circumstance being present on record, he could not modify the distribution order and accordingly rejected the application. Aggrieved by these orders, the appellants are before this Court in this appeal.
5. On 13/11/2013, this Court had passed an order to the effect that the appeal shall be heard finally at the admission stage itself on the next date. In pursuance of this order, this appeal has been heard. During the course of hearing, it has been found that the appeal involves a substantial question of law and, therefore, deserves to be admitted. Accordingly, the appeal stands admitted on the following substantial question of law.:
œWhether a divorced wife is a widow and hence dependent of the husband at the time of his death, within the meaning of Section 2(1)(d) of the Workmen's Compensation Act, 1923?
6. I have heard Shri Khajanchi, learned Advocate for the appellant and Shri Isaac, learned Counsel who has waived notice for the respondent, on the substantial question of law as framed above. With their assistance, I have gone through the memo of appeal and the paper book including the copies of the impugned orders.
7. In this case, it was the specific averment of the appellants that appellant No.1 was the second wife of deceased Kishore and respondent was the first wife of the deceased, who had been divorced by the deceased in the year 1996, prior to the marriage between deceased Kishore and appellant No.1. The appellants had claimed, as seen from their application filed under Section 8(4) of the Act, 1923, that deceased Kishore had divorced the first wife the respondent on 22/5/1996 by mutual consent in accordance with the usages and customs of Buddhist religion of which they were the followers. No reply to this application had been filed by the respondent. She did not deny any of these averments. Appellant No.1 had examined herself as witness on behalf of the appellants before the Commissioner, Chandrapur. During the course of her evidence, documents were produced by her and they were proved by her and accordingly exhibited by the Commissioner. One of the documents produced by her is an affidavit sworn by deceased Kishore at Exh.32 and this affidavit supports the contention of the appellants that respondent, though first wife of the deceased, had been divorced by the deceased and after the divorce, the deceased had performed marriage with appellant No.1. No contest to this evidence has been made by the respondent.
8. Learned Counsel for the appellants submits that in fact, respondent had declined to cross-examine appellant No.1. In such circumstances, it has to be accepted, at least for the purposes of the proceedings filed under the Act, 1923, which are summary in nature and which are not carried on strictly in accordance with the provisions of the Code of Civil Procedure and the Evidence Act, that respondent, at the time of death of Kishore, was having a status of divorced wife and not as the wife of Kishore. It would then follow that she could not be termed as 'Widow' of deceased Kishore. A widow is a woman, as we understand from the meaning of the term in its ordinary sense, whose husband is dead and who has not married again. A man is husband of a woman only as long as there is no snapping of matrimonial relations by a divorce a vinculo or dissolution of marriage or death.
9. In the case of Smt. Rambai Vs. Ramesh Kumar reported at AIR 1996 M.P. 144 cited before me by learned Counsel for the appellants, the meaning assigned to the word 'widow' in 'Words and Phrases? Permanent Edition, Vol.45 page 141 has been approved by the learned Single Judge of Madhya Pradesh High Court. The learned Judge has held that, œWhere husband and wife are divorced a vinculo, the wife after the husband's death is not his 'widow' ....? The relevant observations of the learned Judge are to be found in paragraph 12 and same are reproduced thus;
œ.......In 'Words and Phrases? Permanent Edition, Vol.45 page 141 under the heading 'divorced wife', the word 'widow' means a woman who has lost her husband by death and has no application to a divorced woman. Where husband and wife are divorced a vinculo, the wife after the husband's death is not his 'widow' and entitled to dower..?
10. In view of the above, the argument of learned Counsel for the respondent that respondent is a widow and dependant of the deceased cannot be accepted and argument of learned Counsel for the appellants in this regard needs to be upheld. I, therefore, find that in the instant case, for the purpose of enquiry under the Act, 1923, the respondent cannot be said to be enjoying the status of widow of deceased Kishore. Once we find that so far as the enquiry under the Act, 1923 is concerned, the respondent was not the widow of deceased Kishore, she would be out of the scope and ambit of the definition of the term, 'dependent' as given in Section 2(1)(d) of the Workmen's Compensation Act, 1923, which describes, inter alia, a widow of a deceased workman as his dependant.
11. Learned Commissioner in his first impugned order has found that the respondent, being widow of deceased Kishore, was entitled to receive 50% of the compensation amount. However, he has not assigned any reason as to how the respondent could be given the status of a widow in the instant case. I have already discussed earlier in details as to how the respondent cannot be termed as a widow in this case and as such the first impugned order passed by learned Commissioner, Chandrapur cannot be sustained in law. It would then follow that the subsequent order refusing to revise the first order can also be not upheld. The substantial question of law is thus answered accordingly.
12. In the circumstances, I find that both the impugned orders deserve to be quashed and set aside to the extent they grant 50% of the compensation amount to be distributed to the respondent and I do so. The appeal is allowed and it is directed that the entire amount of the compensation shall be equally distributed amongst all the appellants.
In the circumstances of the case, there shall be no order as to costs.