Fernando V. Aponsu

 

1940     Present: de Kretser J.

 

FERNANDO v. APONSU 462-Workmen's Compensation Case C 25

 

Workmen's Compensation-Father's claim to be dependant of son-Son's wages go to the family fund-Father not a dependant. is a painter who called in his son (the deceased) to assist him whenever work was available. work was available.

 

The deceased's wages were paid to the claimant and he paid the son, whose wages were used to help the family fund. The claimant was a regular wage earner and he maintained the family, including the deceased.

 

Held, that the claimant was not a dependant of the deceased son.

 

APPEAL from an order of the Commissioner under the Workmens' Compensation Ordinance.

 

Cyril E. S. Perera, for defendant, appellant.-The admitted facts prove that the deceased was a dependant of his father, the applicant. It was the father who obtained employment for him about three months in the year. The mere fact that the deceased paid whatever he thus earned into the family fund is not sufficient to prove that the father was a dependant. Montgomery v. Blows [1 (1916) 1 K. B. D. 899.].

 

Section 22 of the English Act of 1923 defines a partial dependant. The contributions must be for the provisions of the ordinary necessaries of life suitable for persons in his class and position.

 

The respondent informed the Commissioner that he had settled the matter with the employer, and the Commissioner had no power to re-open a claim that had been waived, and in any event the applicant is out of time and no sufficient cause has been shown for the delay.

 

S. W. Jayasuriya, for applicant, respondent.-This is a case of partial dependency and our Ordinance follows the English Act of 1906 and the fact that the earnings of the deceased went into the family fund at the time of his death is sufficient to establish partial dependency.

 

The fact that the deceased son was maintained by the father when he had no employment, does not affect the respondent's claim as there was a duty cast on the father to maintain his children and under the English Act of 1906 such a claim could be maintained. Main Colliery Co., Ltd. v. Davies[1 (1900) A. C. 358. ] ; and Hodgson v. West Stanley Colliery Co. [2 (1901) A. C. 229.] The real test is the financial injury caused to the respondent by the death of the deceased.

 

The respondent was out of time, but his explanation for the delay has been accepted and that finding cannot be questioned here as it is a question of fact; and no claim was made as the employer held out a promise of employment.

 

Cur. adv. vult,

 

October 31, 1940. DE KRETSER J.-

 

The deceased workman met with an accident on March 12, 1938, and died on th

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