Judgment:
1. Admit. With the consent of learned Counsel for the parties, this appeal is heard finally at the stage of admission.
2. This appeal is directed against the judgment and award, dated 22.3.2010, passed by Civil Judge Senior Division & Commissioner for Workmen's Compensation Act, Hingoli in F.A. No.3 of 2009, thereby dismissing the claim petition filed by the appellants seeking compensation under section 4 (1) (a) of Workmen's Compensation Act, 1923.
3. This being an appeal under the Workmen's Compensation Act (to be treated as a second appeal and) substantial question of law under section 30 of the said Act is framed as follows :- Whether the Civil Judge Senior Division and Commissioner for Workmen's Compensation Act has erred in law in not holding the parents of the deceased as dependents in view of section 2 of the Workmen's Compensation Act, 1923 ?
Ans : Yes.
4. Appellants/original claimants are parents of deceased Shaikh Mukhtar, who died in an accident which had taken place on 6.3.2006. Deceased was in the employment of respondent no.1. Jeep No.MH-30/B-6265 belonged to respondent no.1. On 6.3.2006 deceased Shaikh Mukhtar was driving vehicle from Kurduwadi to Setphal. Deceased met with an accident and he died on the same day. The accident was reported to Kurduwadi police station and offence was registered. As deceased died in the course of the employment of respondent no.1, his parents filed application for compensation under the Workmen's Compensation Act. The said claim was dismissed by the Commissioner, mainly on the ground that the petitioners failed to prove that they are dependents upon the income of deceased. Hence, this appeal.
5. Learned Counsel for the appellants submitted that the Commissioner under the Workmen's Compensation Act decided all the main issues in affirmative, except issue no.1 which was in respect of the dependency of the appellants on the deceased. He pointed out that under section 2 (1) (d) (iii) (b) of the Workmen's Compensation Act, 1923, the "parents" are considered as dependents. He submitted that the learned Commissioner has recorded an erroneous finding in view of section 2 (1) (d) (iii) (b) of the said Act. In cross-examination of the appellant no.1, the mother of the deceased, admitted that she and her husband used to do some labour work and they used to earn Rs.30/- each per day. Relying on this evidence, the learned Commissioner held the appellants were not dependents and refused compensation. Learned Counsel further submitted that the vehicle was insured on 6.3.2006 and in the body of the judgment, at the bottom of paragraph no. 7 the Commissioner has observed that insurance policy Exh.29 showed that on the date of the accident the vehicle was insured with respondent no.2. However, while giving finding about the insurance policy, it was held that respondent no.2 has not insured the jeep in question. He submitted that obviously this finding given to said issue is wrong, considering the assessment of the documentary evidence i.e. of the policy produced before the Commissioner. He argued that at the time of accident deceased was working as a Driver, employed on the jeep owned by respondent no.1 and as per the evidence of appellant no.1 he was getting salary of Rs.4,000/- per month. This evidence is not denied by respondent no.1, the employer and, therefore, the income of the deceased, who was a Driver by occupation, is to be accepted as Rs. 4,000/- per month. He argued that at the time of the incident, deceased was 21 years old, accordingly the compensation of Rs.4,45,420/- be granted.
6. Learned Counsel for respondent no.1 - owner submitted that respondent, though is an owner, the vehicle was insured and, therefore, he is not to be held liable to pay the amount of compensation. He further submitted that if penalty is awarded, then he should get an opportunity to go before the Tribunal to give explanation.
7. Learned Counsel for respondent no.2 has fairly agreed that the Commissioner recorded an erroneous finding on the point of dependency of the parents of the deceased, i.e. appellants and issue no.1 should have been decided in affirmative. While opposing appeal on other counts, he submitted that the number of the vehicle mentioned in the application and in the first information report is MH-30/B-6266. However, the policy which is produced before the Commissioner, discloses the number as MH-30/B-6265. So, it is doubtful to hold the said vehicle was insured with respondent no.2 insurance company. He challenged the income of the deceased which is claimed at Rs.4,000/- per month. He submitted that no proof is produced by the appellants that deceased was earning Rs.4,000/- per month, therefore, for the purpose of determining compensation it is to be accepted as Rs.3,000/- per month. He further submitted that as per section 4 (d) of the Workmen's Compensation Act, the said amount to be deducted 50%, so it will be Rs.1,500/- per month and further as both the appellants were earning Rs.30/- each per day , their dependency is to be reduced again by 50%, so for the purpose of further calculation, the income is to be fixed as Rs.750/- per month.
8. It is useful to reproduce the definition of "dependent" under the Workmen's Compensation Act, 1923, which reads thus :- "2 (1) (d) "dependant" means any of the following relatives of deceased (employee), namely :-
(i) a widow, a minor [legitimate or adopted] son, an unmarried [legitimate or adopted] daughter, or a widowed mother; and (ii) if wholly dependant 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 dependant 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 an 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." Observations of the Law Commission of India are gainfully reproduced as follows :-
"The basic principle underlying the provision entitling the dependants to claim compensation under the Act, is that there should not be sudden economic dislocation in the family by reason of death of the workman. The list of dependants is based on certain assumptions as to dependence, having regard to Indian social conditions."
"The definition of dependant appears to be complex, but the complexity is mainly due to the legislative scheme. The compensation is to be distributed among the dependants. The intention of the Legislature is that while in the case of certain relatives this benefit should be available irrespective of whether they are or are not dependant on the workman, in the case of certain other relatives the benefit should be available only if they are dependant on him."
9. Under the definition of "dependant", three categories are made and persons falling under these categories are required to be relatives of the deceased. Under section 2 (1) (d) (i) a widow, a minor son, an unmarried daughter or a widowed mother are considered. A son or daughter who is infirm and wholly dependant on the earnings and even after attaining the majority is brought under category (ii) of the definition of "dependant". Under category (iii) the relatives from (a) to (h) are covered. They may be wholly or partially dependant on the earnings of the employee at the time of his death. Parents may not be having any earning or they may be having some earning and their dependency on the deceased may be wholly or partially. In other words, the relatives falling in clause (a) to (5) sub-clause (iii) if are financially fully independent, self sufficient due to their earnings, so not dependant, then they cannot be covered under clause (iii) (a) to (h). Condition of financial dependency wholly or partly is not mentioned for the relatives falling in clause (i). Thus, a widow or an unmarried daughter may be employed or earning elsewhere and a widowed mother may be getting her pension, irrespective of their economic dependency, they are to be treated as "dependants". Thus, the categorization in sub-clause (i) to (iii) under sub-section (1) (d) is based on patriarchal social set up and the principle of responsibility. More the degree of responsibility on the deceased higher the dependency, irrespective of earning or the financial condition of the said relative. Firstly parameter of the degree of responsibility is applied thereafter, whole or partial financial dependency of the relatives is considered and then it is categorized in a hierarchy of manner in categories (i), (ii) and (iii). Significantly though it is hierarchial, it is not preferential. So, widow of the deceased from class (i) and dependant parents from class (iii) both are entitle to compensation once they prove that they fall under the definition of dependant. Court on considering other relevant factors may order apportionment of the amount of award among the dependant claimants. If relative falls under one of the three categories, then multiplier as given in the schedule is mathematically made applicable for the purposes of calculation of the amount of compensation. In the present case, parents were earning Rs. 30/- each per day. It is true that they were earning something but they were not financially fully independent. They fall in the category of "partly dependant" on the earning of the deceased and, therefore, in the purport of definition of "dependant" under section 2 (1) (d) (iii) (b), present appellants are covered. Submissions of learned Counsel for the insurance company that as the appellants were earning some amount and so 50% is to be deducted from the amount can not be accepted. It is to be noted that once the relative falls under the definition of "dependant" under section 2 (1)(d) of the Act, then his own income is not to be taken into account for the purposes of deduction from the amount of the compensation as it is not contemplated under the law. It is a beneficial legislation, so it is to be interpreted in favour of the workman.
10. Appellant no.1 has examined herself and has stated that her son was a Driver, in the employment of respondent no.1 and was earning Rs. 4,000/- per month. It is true that she did not produce any documentary evidence as a proof of the salary of her son. However, it is difficult to get the salary certificate or any salary slip, as generally no such certificate is issued to the Driver who is employed privately. Respondent no.1 did not appear before the Commissioner. Matter proceeded ex parte against him. He was the best person to contradict the evidence of this witness. Though the insurance company has denied it, there is no reason as to why the evidence of the mother of the deceased is to be disbelieved. The Commissioner has also decided this issue in favour of the appellants and accepted monthly income of deceased to be Rs.4,000/- per month.
11. Learned Counsel for respondent no.2 insurance company has prayed that the matter is to be remanded. However, this is not a fit case to remand the matter to the learned Commissioner.
12. The inconsistency pointed out by the learned Counsel for the insurance company in the number of the vehicle as mentioned in the claim application and in the policy is correct. However, the name and address of the registered owner appearing in the policy and the name and address of respondent no.1, who is claimed to be the owner is the same. The difference is of only one digit (last digit) i.e. instead of "5", it is mentioned as "6". Such mistake is common and probably it is not to be considered any material inconsistency or defect in proving the policy. Thus, the vehicle was insured and policy was valid at the time of the accident. Thus, considering the evidence and the legal position, I am of the view that the appeal is to be allowed. The monthly income of the deceased is accepted as Rs.4,000/-, from which 50% amount is to be deducted as per section 4-A of the Act. Deceased was 21 years old at the time of the incident and, therefore, as per the schedule, the income is to be multiplied by 222.71. Thus, Rs.2000 x 222.71 = Rs.4,45,420/-. As per the requirement of section about penalty under section 4-A of the Act, the Commissioner is required to give a show cause notice to the employer. However, in the present case, it is not done and learned Counsel for the appellants has also not pressed the same issue and, therefore, I am of the view that compensation of Rs.4,45,420/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realisation is to be awarded. Respondent no.2 - insurance company shall deposit the same within eight weeks from today.
13. In the result, the appeal is allowed. The judgment and award passed by the learned Commissioner is quashed and set aside. Respondent no.2 - insurance company is directed to pay compensation of Rs.4,45,420/- to the appellants, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till its realization, within a period of eight weeks from today. In the circumstances, there will be no orders as to costs.