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Judgment
A.S. Supehia, J
In the present writ petition, the petitioner has challenged the order dated 07.07.2018 passed below Exhibits 10 and 12 in Workman Compensation
Application No.2/2017, wherein and whereby the application filed for condonation of delay and application for joing legal heirs in the compensation
proceedings have been allowed.
Learned advocate Mr.Hitendra D. Rajput appearing for the petitioner has submitted that the impugned order passed by the Commissioner of
Workman Compensation allowing the applications is illegal since such application is filed by the elder brother of the deceased employee after his
father, who filed the original application seeking compensation, passed away. He has submitted that the respondent is the elder brother, who being a
major, cannot be allowed to be brought on record in the compensation proceedings for claiming compensation under the Employee’s
Compensation Act, 1923 (for short “the Actâ€) since the elder brother, who is not dependent and major, has been excluded from the definition of
“dependent†as stipulated in Section 2(d) of the Act. In support of his submissions, he has placed reliance on the judgment of the Full Bench
decision of the Madras High Court in case of B.M. Habeebullah Maricar vs. Periaswami And Ors., AIR 1997 Madras 330. Thus, he has submitted
that the present writ petition may be allowed.
Per contra, learned advocate Mr.P.C.Chaudhri appearing for the respondent has submitted that since the father of the respondent, who had initiated
the proceedings of compensation after the death of his son i.e. the younger brother of the respondent, passed away on 19.06.2017, the respondent filed
an application in the original workman compensation proceedings for condonation of delay and for bringing him as a legal heir on record of such
proceedings. He has submitted that the respondent being the only dependent and legal heir of the deceased employee/workman, the order passed by
the Commissioner Workman Compensation is just and proper and the same may not be set aside. He has submitted that such application is
maintainable, as it is filed being a legal heir of the deceased employee and not as a dependent. In support of his submissions, he has placed reliance on
the judgment of the High Court of Andhra Pradesh in case of Mandadi Adilakshmi vs. Vallabhaneni Siva Prasad And Ors., 2013 LawSuit (AP) 317,
the judgment of Division Bench of Kerala High Court in the case of Commissioner for Workmens Compensation vs. P.V. Mohanan, 1988 LawSuit
(Kerala) 11 and the Division Bench decision dated 14.10.1976 of the High Court of Judicature at Karnataka in case of Kaveri Structurals vs.
Bhagyam. Thus, he has submitted that the present writ petition may not be entertained.
This Court has heard the learned advocates appearing for the respective parties at length.
The short issue involved in the present writ petition is that whether the respondent, who is the elder brother of the deceased employee/workman and
is major can pursue the proceedings initiated by his father under the Act. On the demise of his son one Balairam Ramlotavan Kori, filed a Workman
Compensation Application (Fatal) No.2 of 2017 before the Commissioner, Ahmedabad claiming compensation. During the pendency of the aforesaid
proceedings, Shri Balairam Ramlotavan Kori passed away on 19.06.2017. On his demise, the respondent, who is the elder son and also the elder
brother of the deceased employee, filed a delay condonation application below Exh.10 and also filed an application for joining him as legal heir below
Exh.12. By the order dated 07.07.2018, the Commissioner, Workman Compensation allowed both the applications and the respondent was ordered to
be brought on record of the proceedings as a legal heir.
At this stage, it would be referred to the provisions of Section 2(d) of the Act, which defines “dependentâ€. The same reads as under:-
“2.Definitions-
(d) “dependant†means any of the following relatives of a 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;
Explanation.--For the purposes 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.â€
A plain and simple reading of the aforesaid definition, which narrates different category of relatives of a deceased employee will clarify that the elder
brother, above the age of 18 years, is not included in the definition. Sub Clause (ii) of sub-section (d) of Section 2 of the Act stipulates about a son or
daughter, who has attained the age of 18 years and is infirm. It is not the case of the respondent that he is infirm. The date of birth of the respondent
is 11.01.1996 and on the date of filing of the application seeking condonation of delay below Exhibits 10 and 12 i.e. 05.03.2018, the respondent was
above 18 years of age.
Thus, by allowing the application of the respondent, the Commissioner Compensation has indirectly allowed a dependent, who is excluded from the
definition of Section 2(d) of the Act for seeking compensation. The intention of the legislature by stipulating various categories of the relatives of the
deceased employee, which can be seen from the definition, was benevolent since only those dependents, who are infirm in any manner, and are
dependent on the deceased employee in carrying out their day-to-day activities or satisfying their needs are permitted to have the benefit of the
provisions of the Act. By allowing the elder brother, who is above 18 years of age by bringing him on record through an application filed for legal heirs,
a category, which is excluded from the array of the dependents cannot be indirectly introduced in the claim proceedings. The Commissioner,
Workman Compensation has not applied its mind with regard to the fact that the respondent, who was a major is not included in the definition, could
not have been brought on record to continue the proceedings under the Act, which would have ultimately resulted in grant of compensation to him
though he has been excluded from the definition of “dependentâ€. Though, there cannot be any cavil on the principle of law that the dependents,
who are included in the definition of Section 2(d) of the Act, can pursue the proceedings initiated by any of the dependents after the demise of the
employee or any of the dependents, who pass away during the proceedings of the compensation. The other dependents, who do not fall within the
embrace of Section 2(d) of the Act cannot pursue such application seeking compensation.
In the present case, as narrated hereinabove, the elder brother, who is more than 20 years of age is seeking to pursue the application filed for
compensation by his father after his death, which is impermissible in view of the categorically exclusion of such category from Section 2(d) of the Act.
The judgment in the case of Kaveri Structurals (supra), on which reliance is placed by the learned advocate for the respondent will not apply to the
facts of the case, as the same does not, in any manner, reveal that the dependent who was a major, and infirm who was allowed to be joined as a legal
heir in the proceedings before the Commissioner, Workman Compensation. Similarly, the other judgments of the High Court of Kerala and Andhra
Pradesh do not, in any manner, indicate that the dependent, who is a major, infirm and elder brother of the deceased, is allowed to be joined as a legal
heir for pursuing the application for workman compensation.
The Full Bench of the Madras High Court in the case of B.M. Habeebullah Maricar (supra), while examining an analogous issue, has held that the
definition of the term 'dependent' would show that it is not intended to benefit all the heirs of a deceased workman, but to embrace only those relations
who, to some extent, depend upon the deceased employee. Thus, the Commissioner Workmen’s Compensation has exceeded his jurisdiction by
allowing the application below Exhibits 10 and 12 for the respondent. Hence, the present writ petition succeeds. The impugned order dated 07.07.2018
passed below Exhibits 10 and 12 in Workman Compensation Application No.2/2017 is hereby quashed and set aside. Rule is made absolute.