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1994 Supreme(All) 120
IN THE HIGH COURT OF ALLAHABAD
J. P. Semwal, J.
SINGHAL AND CO. - Appellant
Versus
HUSSAIN ALI - Respondents
F. A. F. O. 304 Of 1979
Decided On : 02/03/1994
P.BHARGAVA, U.N.Sharma, VIJAY RATAN AGARWAL
The term 'dependant' under Section 2(d) of the Workmen's Compensation Act, 1923, must be interpreted in accordance with the provisions of the Act. A father claiming compensation as a dependent of a deceased workman must establish that he was wholly or partially dependent on the earnings of the deceased at the time of his death.
Headnote:
WORKMEN'S COMPENSATION ACT, 1923 - SECTION 2(D) - INTERPRETATION OF DEPENDANT - FATHER OF DECEASED WORKMAN - WHOLLY OR PARTIALLY DEPENDANT ON EARNINGS OF DECEASED AT TIME OF DEATH - NECESSITY TO ESTABLISH DEPENDENCY - WORKMEN'S COMPENSATION COMMISSIONER'S FAILURE TO CONSIDER AND GIVE FINDING ON DEPENDENCY - ERROR IN LAW - REMAND OF CASE FOR FRESH DECISION.
Fact of the Case:
Manauwar Ali, employed by the appellant company as a visit, died on May 12, 1978, due to an accident during the course of his employment. His father, Hussain Ali, filed an application under Rule 20 of the Workmen's Compensation Rules, 1924, claiming compensation as a dependent of the deceased. The Workmen's Compensation Commissioner awarded compensation to Hussain Ali, holding that he was a workman within the meaning of Section 2(h) read with Schedule 2 of the Act and entitled to compensation as the legal heir of the deceased.
Finding of the Court:
The court found that the Workmen's Compensation Commissioner erred in not interpreting the term 'dependant' in terms of Section 2(d) of the Act and in not applying his mind to the evidence on record. The court held that the Commissioner failed to frame an issue on the question of dependency and did not discuss the evidence or give a finding on whether Hussain Ali was wholly or partially dependent on the earnings of the deceased at the time of his death.
Issues: 1. Whether the application under Rule 20 was maintainable despite non-compliance with Rule 20(2). 2. Whether the Workmen's Compensation Commissioner erred in not framing issues in terms of Rule 28 and recording judgment in terms of Rule 32 of the Rules. 3. Whether the Commissioner erred in awarding compensation to Hussain Ali without giving a finding on his dependency within the meaning of Section 2(d) of the Act.
Ratio Decidendi: 1. Non-compliance with Rule 20(2) does not render the application non-maintainable; it is an irregularity that does not affect the legality of the trial. 2. Failure to frame issues and record judgment in accordance with the Rules is an error in procedure, but does not vitiate the proceedings unless it prejudices the parties. 3. The Commissioner erred in not interpreting the term 'dependant' in terms of Section 2(d) of the Act and in not applying his mind to the evidence on record. The Commissioner failed to frame an issue on the question of dependency and did not discuss the evidence or give a finding on whether Hussain Ali was wholly or partially dependent on the earnings of the deceased at the time of his death.
Final Decision: The court allowed the appeal, set aside the Commissioner's judgment, and remanded the case back to the Commissioner for a fresh decision in accordance with the law and the observations made by the court.
( 1 ) THIS is an appeal under Section 30 of Workmens Compensation Act against the order dated march 2, 1979 passed by the Workmens Compensation Commissioner, Allahabad Region in compensation Case No. 7 of 1978, awarding Rs. 18,000/- as compensation to respondent claimant from the appellant company.
( 2 ) THE facts leading to the present appeal may be summarised as below: respondent No. 1 Hussain Ali made an application under Rule 20of Workmens Compensation rules, 1924 before the Workmens Compensation Commissioner, Allahabad for compensation. The claimant Hussain Ali is the father of Manauwar Ali deceased who was employed with the appellant Company. The appellant Company was given contract by the respondent No. 2 IFFCO for construction of residential quarters in IFFCO town, Phulpur. During the course of construction Manauwar Ali was employed by the appellant as visit. On May 12, 1978, manauwar Ali died on account of falling of wall in the course of his employment. The respondent No. 1 is the father of the deceased and as father he made an application under Section 20 of the Workmens Compensation Rules. The copies of the application were sent to the appellant and respondent No. 2 and both filed written statements. Both sides produced evidence, oral as well as documentary, before the Workmens Compensation Commissioner, Various objections were raised before the Workmens Compensation Commissioner by the appellant company but they were overruled by the Commissioner and he held the deceased Manauwar Ali as workman by virtue of Section 2 (h) read with Schedule 2 and held the respondent No. 1 to be entitled to a compensation of Rs. 16,000/- being legal heir of the deceased. Aggrieved by this order, the appellant company has preferred this appeal.
( 3 ) I have heard the learned counsel for the appellant and the respondent No. 1 and have pursued the record of the case.
( 4 ) THE learned counsel for the respondent No. 1 raised a preliminary objection regarding the maintainability of appeal and argued that in an appeal under Section 30 of the Act, a substantial question of law should be involved and no. such plea has been taken. No doubt the appeal under section 30 of the Act is maintainable only when a substantial question of law is involved in the appeal. The appeal does not lie on a question of fact. The question whether the accident has been proved is a question of fact. A finding about the height of wall is also question of fact The question whether at the time of accident the workman was working or not is also a question of fact. A finding about quantum of wages drawn by the workman is a question of fact. Whether the workman was on duty is a question of fact. The question whether a particular person is a workman is question of fact, but the question whether he is the workman within the meaning of the Act is substantial question of law. Similarly the question whether a person is dependent within the meaning of the Act is substantial question of law. In the present appeal, the appellant has taken a number of pleas in the memo of appeal and pleas Nos. 1, 2, 7 and 8 clearly involve substantial questions of law which are regarding the interpretation of the meaning of dependant and workman under the Act. Hence I do not find any force in the premilinary objections.
( 5 ) THE pleas of the appellant on question of fact cannot be entertained in this appeal and hence it is not necessary to mention about the same. The learned counsel for the appellant, however, assailed the judgment of the Workmens Compensation Commissioner and the claim of respondent No. 1 itself. It was argued that the application was not maintainable under Rule 20 as the respondent No. 1 had not mentioned in the application as to on what basis he claims to be entitled to move the application. No doubt in the application, which is in form G made by the applicant, para 2 simply mentions that the applicant is dependant of the deceased, being his father. This by
