IMPORTANT POINT
The right to compensation under the Employees Compensation Act vests in dependants immediately upon the employee's death, and can be claimed by legal representatives if the dependant dies before filing a claim.

JUDGMENT :

Introduction:

1. The misc. appeal - S.B. C.M.A. No. 974/2015 (hereinafter referred to as ‘the appeal’) has been preferred by the appellant-Insurance company under Section 30 of the Employees Compensation Act, 1923 against the judgment and award dated 11.03.2015 (hereinafter referred to as ‘impugned award’) passed by Employees Compensation Commissioner, Udaipur in Claim Case No. 22/2011 seeking relief that the impugned award be kindly quashed and set aside. The respondent no. 3/employer in the appeal, who is the owner of Tanker bearing registration No. RJ27 GA 5631, has also filed a misc. Cross Objection under Order 41 Rule 22 of CPC, 1908 in the appeal against the impugned award dated 11.03.2015 seeking the relief that the impugned award be quashed and set aside qua the cross objector.

Facts:

2. The facts germane to the present appeal and cross objection are that one Lehar Singh (hereinafter ‘deceased’) was employed by respondent no. 3/employer (hereinafter ’Cross Objector/employer’) as cleaner on her tanker bearing registration no. RJ27 GA 5631(hereinafter ‘tanker’), which was registered and insured in the name of Lad Kanwar (’Cross Objector/employer’).During the course of employment the deceased was coming from Kandla to Sumerpur in the tanker in the capacity of cleaner (Khallasi) when on 21.10.2008 at around 04:00 AM near Sadbhavana Camp, Babara Patiya the Respondent No. 2 (driver of the tanker) while driving the tanker rashly and negligently dashed in the rear portion of a trailer bearing registration no. RJ32 GA 2695(hereinafter ‘trailer’), which was standing there. As a result of the accident the deceased died on the spot. The FIR No. 79/2008 was lodged before Police Station Sankalpur, District Radhanpur on 21.10.2008 by the respondent no. 2/driver.

3. Thereafter, a registered legal notice (Annex 1) dated 08.07.2010 was sent by brothers of the deceased namely- Mr. Himmat Singh- Claimant/Respondent no. 1/1 and Mr. Pratap Singh-claimant/ Respondent no. 1/2 to the Cross Objector/employer wherein it was stated that the deceased was employed as cleaner by the Cross Objector/employer. Further, it was stated in the said legal notice that the Cross Objector/employer has failed to deposit a compensation of Rs. 4,45,420/- within the stipulated time of one month as required under the Workmen Compensation Act, 1923, therefore the Cross Objector/employer is liable to penalty of 50% of the compensation i.e., Rs. 2,22,710/- along with the amount of compensation. Further, it was stated by the claimants (Respondent no. 1/1 and Respondent no. 1/2) in the said legal notice that if the employer fails to deposit said amount of the compensation and penalty within 7 days from the date of receipt of the legal notice then appropriate proceedings will be initiated against the employer before the court.

4. The Cross Objector/employer in her reply (Annex. 2) dated 02.08.2010 to the legal notice dated 08.07.2010 stated that the claimants (Respondent no. 1/1 and Respondent no. 1/2) being major brothers of the deceased cannot be termed as dependant and hence are not entitled to compensation however, as the tanker was insured with the appellant-insurance company at the time of the accident the claimants (Respondent no. 1/1 and Respondent no. 1/2) are free to initiate legal proceedings against the insurance company.

5. As the compensation was not deposited a claim petition (Annex. 3) under section 10 and 22 was filed by the claimants before the Workmen Compensation Commissioner, Udaipur (hereinafter ‘Commissioner’) on 10.08.2010 seeking compensation and penalty of 50% of compensation amount. The commissioner recorded in the claim petition that the claimant no. 1/Mother of the deceased workmen died on 01.11.2008, and in respect of this fact death certificate-exhibit-8 was filed by her legal heirs, and Himmat Singh (respondent no. 1/1) has also filed a certificate in respect of his disability on the basis of which he claimed that as legal heir he fall