ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.P.C.Chaudhari for the appellant. Though served with the notice of admission of the appeal to the respondent, none has chosen to appear.

2. By judgment and order dated 13.1.2022, learned single Judge allowed the petition to hold that the applicant one Shyamlal Balram Kori, who made application Exh.10 and Exh.12 for condonation of delay and for seeking to join himself as heir of the deceased applicant in the proceedings before the court of Workmen Compensation Commissioner in the Workmen Compensation(Fatal) Application No.2 of 2017, was not entitled to come on record as the heir of the deceased.

2.1 In turn, learned single Judge set aside the order dated 7.7.2018 passed below Exh.10 and Exh.12 in the said Workmen Compensation Application, whereby the Commissioner of Workmen Compensation had condoned the delay and permitted the said applicant Shyamlal Balram Kori to become the heir and legal representative of the deceased.

3. In the background the facts were that the proceedings of Workmen’s Compensation(Fatal) Application was filed by one Balairam Ramlotavan Kori seeking compensation in respect of death of one Ajay Balairam Kori who died in the course of employment on 29.10.2016. The said Ajay Balairam Kori was the son of the applicant Balairam Ramlotavan Kori. During the pendency of the proceedings, the said applicant Balairam Ramlotavan Kori died on 19.6.2017. In view of the death of the applicant, the son Shyamlal Balairam Kori filed the aforesaid two applications, that is Exh.10 and Exh.12 seeking to join himself as the heir of the deceased Balairam Ramlotavan Kori. Delay of 24 days was condoned by the Commissioner for Workmens Compensation and application Exh.12 was allowed permitting the said Shyamlal Kori to be on record as the heir and legal representative of the deceased.

4. Learned single Judge, when the aforesaid order dated 7.7.2018 below Exh.10 and Exh.12 was challenged before him, quashed the same holding that the said Shyamlal Balram Kori, who was the elder brother of the deceased employee was not entitled to pursue the proceedings initiated by his father. In so holding, learned single Judge adverted to the definition of Section 2(d) of the Workmens Compensation Act which defines ‘dependent’ to conclude that since the applicant Shyamlal Kori was not falling within the purview of definition of ‘dependent’ he would not be entitled to continue the proceedings.

4.1 Following were the reasons waived with learned single Judge extracting from para 7 thus by allowing the application.

“Thus, by allowing the application of the respondent, the Commissioner Compensation has indirectly allowed a dependent, who is excluded from the definition of Section 2(d) of the Act for seeking compensation. The intention of the legislature by stipulating various categories of the relatives of the deceased employee, which can be seen from the definition, was benevolent since only those dependents, who are infirm in any manner, and are dependent on the deceased employee in carrying out their day-to-day activities or satisfying their needs are permitted to have the benefit of the provisions of the Act. By allowing the elder brother, who is above 18 years of age by bringing him on record through an application filed for legal heirs, a category, which is excluded from the array of the dependents cannot be indirectly introduced in the claim proceedings. ”

4.2 It was further observed by learned single Judge that the Commissioner for Workmen Compensation did not apply mind since permitting the applicant to be on record, notwithstanding that he was not ‘dependent’ within the meaning of definition would result into grant of compensation to him. Relying on certain judgments on the analogus point, learned single Judge concluded that the order dated 7.7.2018 was not justified.

5. Right to continue with the cause of action in a proceedings and right to relief, are two distinct aspect