P.K. Tare, J.
1. This appeal shall also govern the decision of Misc. First Appeal No. 150 of 1955 (Mst. Kulsumbi v. Newton Chikli Colliery Parasia, District Chhindwara).
2. This appeal is directed against the order passed by Shri C. B. Kekre, District Judge, and Commissioner under the Workmen's Compensation Act, Chhindwara, refusing to award the amount of compensation in favour of either of the appellants namely, Mst. Intiyajbi or Mst. Kulsumbi.
3. One Sheikh Ibrahim, who was an employee of the Newton Chikli Colliery, met with an accident on 10-12-1954, as he was entrapped in a mine pit, which got flooded. As a result, he was drowned and he died. The Managing Director of the Colliery filed a statement before the Commissioner, under the Workmen's Compensation Act praying that the amount of compensation calculated at Rs. 1050/- be paid to the heirs of the deceased. In answer to notices, the two appellants put in their claims.
The original appellant in Misc. First Appeal No. 142 of 1955 namely Mst. Ulfatbi was the father's mother of Sheikh Ibrahim. She died during thependency of the present appeal and Mst. Intiyajbi, who is the father's sister of the deceased. Sheikh Ibrahim, was substituted as the legal representative. In the other appeal Misc. First Appeal No. 150 of 1955, the appellant Kulsumbi is the mother of the deceased Sheikh Ibrahim, who was her son from her first marriage. Some time after the death of her first husband, and a few years before the death of Sheikh Ibrahim, Mst. Kulsumbi married for the second time.
Therefore, in the present case the claimants were on the one hand, father's mother and on the other hand, the mother, who had remarried before the death of the workman. It is also on record that Sheikh Ibrahim never stayed with his mother Kulsumbi, but used to stay with his grand mother, Mst. Ulfatbi. The grand mother depended on Sheikh, Ibrahim, while the mother Kulsumbi was not dependent on Sheik Ibrahim, as she had already married for the second time and was living with her present husband some years before the death of Sheikh Ibrahim. The question in the present case is as to which-of the two claimants would be entitled to the compensation amount. Section 2(d) of the Workmen's-Compensation Act, 1923 is to the following effect: Dependant means:
'(i) a widow, minor legitimate son, and unmarried legitimate daughter, or a widowed mother, and
(ii) if wholly or in part dependent on the earning of the workman at me time of his death, a widower, a parent other than a widowed mother, a minor illegitimate son, an unmarried illegitimate daughter, a daughter legitimate or illegitimate if married and a minor or if widowed, a minor brother, an unmarried or widowed sister, a widowed daughter-in-law, a minor child of a deceased son, a minor child of a deceased daughter, where no parent of the child is alive, or where no parent of the workman is alive, a paternal grand parent;'
4. The learned counsel for the appellant contended that under the first sub-clause of Section 2 Sub-section (d), Mst. Kulsumbi the mother could not be considered to be 'a widowed mother,' as he had re-married before the death of the workman. He suggested that the word 'mother' was qualified by the word 'widowed'. It meant that only a widowed mother ought to be considered as dependent under the said Act. A mother who has remarried for the-second time, cannot be considered to be a widowed mother. He suggested that the use of word 'widowed' was significant in the present case.
He farther suggested that if the intent of the legislature was to provide for mother in all cases, the word mother could not have been qualified by the word 'widowed'. In my opinion the interpretation cannot be accepted for the simple reason that the relationship of mother and son is not destroyed even if the mother remarries. In spite of the remarriage, she still remains the mother of her son. On account of remarriage, she does not lose her rights, which she might have acquired in the property of her deceased husband under the Mohammandan Law.
I am of the view that the use of the word! 'widowed' is specifically for the purpose of distinguishing the mother, who is widowed as against a mother, who is not widowed. Thus if the father of the deceased be living, a mother of the deceased would have no claim whatsoever, as she cannot be said to be a widowed mother. It is from this point of view, that the legislature qualified the word 'mother' in order to provide for her, when the father of the deceased was not alive. The suggestion that a mother who remarried cannot be considered to be a widowed mother, does not appeal to me for the-reason that the relationship of a mother is not des-troyed and, moreover, the word 'widowed' has been used in contradistinction to the word 'unwidowed'. Sub-clause (i) of Sub-section (d) of Section 2 of the Workmen's Compensation Act does not lay down that e persons in that sub-clause must be financially dependent on the deceased.
Those persons would have a right to the compensation, irrespective of the tact, whether they were financially dependent on the deceased or no, while the persons mentioned in Sub-clause (ii) must be financially dependent, either wholly or to part. Even if the interpretation suggested by the learned counsel for the appellant were to be accepted, the mother,who has remarried, would fall under the category'the parent other than a widowed mother'. Thesaid sub-clause further provides that paternal grandparents would have a claim, where no parent ofthe workman is alive. Thus the question whethera mother, who has remarried can be considered to be la widowed mother or no, becomes altogether irrelevant, as, upon any interpretation of the said phrase a mother, if not under Sub-clause (i), at least under Clause (ii) would have a preferential claim than a grand mother. The interpretation that I have attempted to put on Section 2(d) of the Act partly finds support from the observations of Mudholkar J. in the case of Subhaga v. Haribhau, Misc. F. A. No. 202 of 1953 D/- 24-11-1954 (Nag).
Thus I am clearly of the opinion that the grand mother (father's mother) Mst. Ulfatbi could not claim the compensation in preference to the mother, Mst. Kulsumbi. The learned Compensation Commissionerwas of the view that neither of them was entitled tothe compensation. The learned Judge stated that thecase of Mst. Kulsumbi was not covered either by the description 'widowed mother' or 'parents otherthan a widowed mother, wholly or partly dependent on the earnings of the deceased'.
As regards the claim of the grand mother, Mst. Ulfaibi, the learned Judge was of the opinion thatalthough the grand mother was solely dependent on the deceased, she was not entitled to the compensation, as a parent of the workman (namely themother) was alive. Upon this view, the learned Judge held that the compensation could not be paid to either of the claimants. So far as the question offinancial dependence is concerned, Mst. Kulsumbi as A. W. 1 in her deposition stated that Sheikh Ibrahim was 22 years old, when he died, and that she hadmarried her present husband Yusufkhan about 20 years back.
She stated that she married Yusufkhan about' 3 years after the death of her former husband Sheikh Rahim. She also stated that she was living with her husband Yusufkhan, who maintained her. She also stated that the deceased Sheikh Ibrahim had sent her some amount some times, A. W. 2 Shadibux stated that Sheikh Ibrahim had paid amount of Rs. 10to Mst. Kulsumbi, when the deceased had visited Nagpur. The said witness lives about 5 houses away from Mst. Kulsumbi's present house in Nagpur.
The said witness is a Mutvalli of the Mosque. A. W. 3 Sheikh Farid stated that he saw Sheikh Ibrahim, when he visited his mother at Nagpur andon some occasions, when the deceased had made some payments to his mother. As regards the grandmother Mst. Ulfatbi, she was not doing any work or business. She was solely dependent on the deceased, but the view that I take of Section 2(d) of the Workmen's Compensation Act, rules out the grand-mother's claim in the present case altogether, in spite of thefact that she was solely dependent on the deceased. According to me, the mother, in the present case,has a preferential claim, as she is a widowed mother under Sub-clause (1) of Section 2(d). In the alternative, she is a parent other than a widowed mother and partly dependent financially on the deceased.
Even assuming that, she cannot come within Sub-clause (i), she certainly would come in under Sub-clause (2). I am unable to accept the view of the Commissioner to the effect that neither of the claimants was entitled to receive the compensation, as they could not be considered to be 'dependent' under Clause (i) of Section 2(d) of the Workmen's Compensation Act.
5. In the view that I have taken. Misc. First Appeal No. 142 of 1955 filed by the grand mother Mst. Ulfatbi now represented by her daughter Intiyajbi fails and is dismissed, while Misc. First Appeal No. 150 of 1955 filed by the mother Mst. Kulsumbi succeeds and is allowed. But under the particular circumstances of the case, there shall be no order as to costs, as the claim of each claimant was debatable and dependent upon a controversial interpretation of Section 2(d) of the Act. The Newton Chikli Colliery was not represented in the present appeal. I, therefore, direct that the costs incurred in this court, as also in the courts below shall be borne as incurred. I, therefore, direct that the amount of compensation shall be paid to the appellant, Mst. Kulsumbi, the mother.