Honble SlNGHAL, J. — This misc. appeal has been filed against the award of the Workmens Compensation Commissioner, Kota dated October 12,1987.

(2). Learned counsel for the appellant has raised four main points against the award. The first point raised by the learned counsel for the appellant is that Ram Karan, major brother of the deceased is not a dependant in accordance with the definition given under Sec. 2 (1) (d) of the Workmens Compensation Act, 1923 (hereinafter called as the Act). The said Section 2 (1) (d) reads as under.

"2(1)(d): Dependant means any of the following relatives of a deceased workman, namely-

(i) a widow, major legitimate son, an unmarried daughter, or a widowed mother, and

(ii) if wholly dependent on the earnings of the workman 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 workman 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 daugther legitimate or illegitimate 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-decpeased daughter where no Parent of the child is alive or

(h) a paternal grand-parent if no parent of the workman is alive".

(3). I have considered the arguments of the learned counsel for the parties. So far as the award to this extent is concerned, Ramkaran does not fall in any of the categories of the persons defined and as such he is not entitled for apportionment of the amount of compensation. The award is modified to this extent.

(4). The second point which has been raised by the learned counsel for the appellant is that only claim now remains of Smt. Loonga Bai, the mother and she also died on August 3, 1987 and legal heirs fo Smt. Loonga Bai cannot claim the award. Reliance has been placed on the decision in the case of B.M. Habeebullah Maricar V. Periaswami and other (1). A Full Bench of the Madras High Court considered the matter and observed that—

"The object of the Act was to make provision for the payment of compensation to a workman only i.e. to the concerned employees himself in case of his surviving the injury in question and to his dependants in the case of his death in view of S.2 (1) (n). Section 8(4) which enjoins refund of the compensation to the employer in case no dependants are forthecoming leaves no room for doubt that the Act was not intended to benefit any person except the workman and his dependants. Section 2(1) (d) defining the term dependant 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 him for their daily necessities so much so that even some of his nearest and dearest ones viz. sons who have attained majority, married daughter, and an illegitimater daughter whether married or un married are excluded if they were not dependant on the workers earning, wholly or in part, Kinship coupled with dependancy is thus made the sole criterion for a person to fall within the ambit of the definition. The effect of S. 23 of the Act and R.41 of the Rules is that only certain provisions of the Code of Civil Procedure and not others have been made applicable to proceedings under representation in cases where parties to proceedings die is conspicuous by its absence from R.41 and lends further strength to the conclusion that such representation is not contemplated in cases falling under the Act".

In that case the accident took place on October 29,1969. The mother filed a claim for Rs. 3500/- under the Act before the Commissioner having jurisdiction, but the same was contested by the petitioner. During the pendency of that claim with the Commissioner, the mother also expired, and thereupon her son and two

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