The remarriage of a widow does not disentitle the parents of the deceased insured person from claiming dependants benefit under the Employees State Insurance Act, if the deceased person did not leave a widow or a legitimate child or children.

D.K.Mahajan, J.

1. This is an appeal under Section 82 of the Employees State Insurance Act (No. 39 of 1948) against the order of Sub-divisional Magistrate, Batala, dated the 9th of July, 1959, refusing to recognize the parents as the dependants under the Act after the remarriage of the widow of the deceased.

2. Boota Singh was working in the Sardar Foundary Works at Batala. On the date when he died he was working on the grinding machine, when he met with a fatal accident. At the date of his death, he left a widow, Amarjit Kaur, and his aged parents. The widow remarried on the 25th of March, 1958. It seems, she never claimed dependants benefit under the Act. The present application was made by the aged parents. This application was opposed by the Corporation on the ground that Boota Singh had left a widow and therefore the parents were not entitled to the dependants benefit. This objection of the Corporation prevailed with the insurance Court and their claim was rejected. Dissatisfied with this, as I have already said, the parents have come up to this Court in appeal.

3. The contention of Mr. Tewari, learned counsel for the appellant, is that as the widow has remarried, therefore, the parents being the only surviving dependants, are entitled to the dependants benefit. In order to determine this matter it is necessary to set out the relevant provisions of the Employees State Insurance Act. Section 53 of the Act is in these terms--

"53. Where an insured person is or his dependants are entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation, or damages under the Workmens Compensation Act, 1923 (VIII of 1923), or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act, then the following provisions shall apply, namely:-

- (i) The insured person shall, in lieu of such compensation or damages, receive the disablement benefit provided by this Act, but subject otherwise to the conditions specified in the Workmens Compensation Act, 1923 (VIII of 1923) from the Corporation and not from the employer or other person.

(ii) If the insured person dies as a result of the employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury), dependants benefit shall be payable at the rates and in the proportion specified in the Second Schedule to his widow or widows during her or their widowhood, and to minor legitimate or adopted sons and minor legitimate unmarried daughters.

(iii) In case the insured person does not leave him surviving any widow or children as mentioned in Clause (ii) or in the case of an insured woman if she does not leave her surviving any children as mentioned in Clause (ii) dependants benefit shall be paid to the other dependants of the deceased at such rates as may be determined by the Employees Insurance Court having jurisdiction.

(iv) The amount of dependants benefit payable under Clause (iii) shall not exceed one-half of the amount which would have been payable to the insured person as benefit on permanent total disablement.

(v) Save as modified by this Act, the obligations and liabilities imposed on an employer by the Workmens Compensation Act, 1923 (VIII of 1923) shall continue to apply to him."

Second Schedule lays down how the benefit is to be determined and to whom it is to be paid. It is only necessary, in this connection, to set out Rules 4 and 5 of the second schedule, which are in these terms:-

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"4. The disablement or dependants benefit shall be payable to a person suffering from disablement as a result of an employment injury sustained as an employee in a factory or establishment to which this Act applies, or if he dies as a result of such injury, to his dependants as follows: (i) to the insured person--

(a) for temporary disablement, during the period of such disablement at the full