The legal heirs of a deceased dependant are entitled to compensation under the Workmen's Compensation Act, 1923, to the exclusion of the heirs of the deceased workman.

A. PASAYAT, J.

( 1 ) -IN this appeal under the letters patent, National Insurance Company Limited (hereinafter referred to as, "the insurer") calls in question legality of judgment delivered by a learned Single Judge of this court in an appeal under Section 30 (1) of the workmen's Compensation Act, 1923 (in short. "the Act" ). The question involved is a complex one, and being essentially a question of law. detailed reference to factual aspects leading to filing of the present appeal is unnecessary.

( 2 ) ONE Trilochan Bhuyan (hereinafter referred to as "deceased Trilochan"), who was engaged as a helper of the truck bearing registration No. ORU 4741, faced with an accident on 21. 1. 1989 which arose out of and in course of his employment. Ultimately he breathed his last. His brother Sudarsan naik (hereinafter described as 'claimant' lodged a claim for compensation of Rs. 90,000/-from Anirudha Rout, owner of the truck (hereinafter referred to as 'the owner' ). But since the vehicle in question was subject-matter of insurance, and the insurer had accepted to indemnify the award if any made, it was stated that ultimate liability was that of the insurer. At the time of death of the deceased Sudarsan. the claimant was unemployed, and was totally dependent on his brother, deceased Trilochan for his sustenance.

( 3 ) OWNER took the stand that the vehicle was subject-matter of insurance, and therefore, liability if any was of insurer. He accepted that the deceased was his employee and was being paid Rs. 800/- per month as salary. Insurer took the plea of denial of the required and the applicant to prove the allegations. The Assistant Labour Commissioner-curn-Commissioner under the workmen's Compensation Act (in short, 'the Commissioner')allowed the claim application by judgment dated 5. 6. 1989 inter alia holding that the deceased was a helper of the truck at the time of accident and as such came within the purview of workman as defined under the Act and the death was due to injuries sustained which were sustained in course of his employment. The insurer assailed the decision before the Court in Miscellaneous Appeal No. 322 of 1989. By judgment dated 20. 2. 1991, since reported in National Insurance Co. v. Sudarsan Bhuyan and Anr. allowed the appeal and remitted the case to the Commissioner for fresh disposal. Direction was given to the Commissioner to take a fresh decision after giving opportunity to the parties to adduce further evidence, and to record a clear finding about dependency of the claimant and his entitlement to compensation on that basis. Parties were given opportunity to adduce materials/evidence in support of their respective stands. The case was reconsidered. During pendency of the case, claimant Sudarsan died on 4. 4. 1991. His widow Ranjulata Bhuyan (respondent No. 1) filed an application for being impleaded as a party in place of her husband. On hearing the parties, the Commissioner allowed the application for substitution and impleaded Ranjulata in place of her deceased husband. The Commissioner held that claimant being minor brother of the deceased having no source of income was fully dependent on the earning of his elder brother, the deceased Trilochan. The deceased was aged about 20 years at the time of death, and ranjulata being widowof Sudarsan, the claimant is entitled to get compensation payable to sudarsan Quantification of the compensation was done at Rs. 71,680/ -.

( 4 ) IN the appeal before the learned Single judge it was urged that Ranjulata should not have been considered as a dependent, and therefore, the conclusions of the Commissioner were perverse. Referring to various decisions which were cited by the parties in support of their respective stands, it was observed by the learned Single Judge, that the commissioner was justified in his view that ranjulata was entitled to compensation.

( 5 ) IN support of the appeal, the learned 1. 1992 (1) TAC 202. counsel for the insurer submitted that Section