Madras High Court
B.M. Habeebullah Maricar vs Periaswami And Ors. on 8 April, 1977
Equivalent citations: AIR1977MAD330, (1977)IILLJ322MAD, 35 FACLR 167, AIR 1977 MADRAS 330, 1977 LAB. I. C. 1676, 1990 MADLW 606, (1977) 2 LABLJ 322, 1977 ACJ 517, (1977) 2 LABLN 370, (1977) 9 LAWYER 138, ILR (1978) 1 MAD 251, (1977) 2 MADLJ315, 51 FJR 124
JUDGMENT Koshal, J.
1. One Arumugham was employed with the petitioner as a workman and, while on duty, died as a result of a fall from a tractor on the 29th of October, 1969. His mother filed a claim for Rs. 3,500 under the Workmen's Compensation Act (hereinafter referred to as the Act) before the Commissioner having jurisdiction, but the same was contested by the petitioner. During the tendency of that claim with the Commissioner, Arumugham's mother also died, whereafter her son Periaswami (respondent No. 1) and her two daughters Thailammal and Anjalai (respondents Nos. 2 and 3 respectively) made a joint application to the Commissioner praying that they be substituted for their mother as her legal representatives. That application was also contested by the petitioner but was accepted by the Commissioner with a finding that the right to the claim survived to the three respondents and that they were entitled to be substituted as legal representatives for their mother.
The order of the Commissioner is dated the 30th of January 1972 and it is that order by which the petitioner feels aggrieved and which he has attacked under Art. 226 of the Constitution of India with a prayer that it be quashed by a writ of certiorari.
2. This petition originally came up for hearing before me sitting singly and it was then contended in support of it that compensation payable under the Act could be claimed only by the injured workman or, in case of his death, by a body of persons described by the Act as 'dependants' and not by any other person, that admittedly none of the respondents was a dependant within the meaning of that expression as used in the Act and that the application made by the respondents before the Commissioner for substitution of their names as their mother's legal representative, was liable to be rejected. Reference in this connection was made to various provisions of the Act and specially to S. 9 which inter alia bars the devolution by operation of law of any lump sum or half-monthly payment payable under the Act to any person other than 'the workman' and to CL. (n) of sub-s. (1) of S. 2 which defines 'a workman' and states that any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.
This contention was sought to be met by the dicta in various judgments more particularly the one in Ikkassintakath Abdurabiman v. Nadakkavu Nalikkal Beeran Koya, 1938-1 LJ 571: (AIR 1938 Mad 402) to the effect that the later part of S. 9 according to which no lump sum or half-monthly payment shall pass to any person other than the workman, applies only to a workman who is in existence when the time for payment comes and not to one who died before compensation was awarded. As no reference to the definition of workman as appearing in the Act was made by the learned Judges who decided that case which, in my opinion, made all the difference to the determination of the point in dispute. I referred the case for decision to a Full Bench and that is how we are now seized of it.
3. Section 9 of the Act reads thus:
"Save as provided by this Act, no lump sum or half-monthly payment payable under this Act shall in any way be capable of being assigned or charged or be liable to attachment or pass to any person other than the workman by operation of law, nor shall any claim be set off against the same."
In holding this section to be limited in application to the case of an existing workman, Venkataramana Rao and Abdur Rahman JJ., who constituted the Bench in the Madras case (at p. 403 of AIR) reasoned thus:
"Section 9 also has no bearing on the facts of the particular case. The first part of that section provides that no lump sum or half-monthly payment payable under the Act is capable of being alienated or subjected to attachment. This is for the purpose of securing the benefit which the Workmen's Compensation Act is intended to provide for the workman or the dependants of the workman. This part of the section has therefore no application to the present case. The other part of the section in S. 9 is that no lump sum or half-monthly payment shall pass to any person other than the workman. This contemplates that the compensation is payable to a workman and cannot be claimed by any person by operation of law. Therefore, before that clause can come into operation, there must be an existing workman to whom it is payable and it has no application to a case where the workman died before the award of compensation. In the case of a workman who is alive and to whom the compensation is payable, the Act says that it must be paid to him and it should not go to any other person; for example, if he becomes an insolvent, his trustee in bankruptsy cannot claim the sum for the benefit of his creditors. This section therefore has no application to this case where the property has been allotted to Pathumma, the mother of the workman, who is a dependant under the Act. It has become her property; it has been recognised to be her property by the said compensation money being invested in the Post Office Savings Bank by the order dated 26th September, 1936."
With all respect to the learned Judges constituted the Bench, these observations do not appear to me to lay down the law correctly. In the first place, no reason is assigned by them for limiting the expression 'the workman' to a workman who is alive and for refusing to extend it to the case of one who is dead, even though transfer by inheritance is a recognised mode of devolution by operation of law. In my opinion, there is no valid reason for restricting the meaning of the expression 'pass to any person other than the workman by operation of law' which should be given its ordinary meaning viz. that in no case the sums mentioned shall stand transferred to a person other than the workman by reason of any legal provision. In other words, the expression is intended to shut out completely the passage of the right of compensation to persons other than the workman. In the second place, the assumption of the Bench that the section could in terms apply only to a case of an existing workman appears to have been made by reason of the provisions of CL. (n) of sub-s. (1) of S. 2 not having been brought to its notice. That clause is extracted below:--
" 'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is:--
(i) a railway servant as defined in S. 3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Sch. II, or
(ii) employed on monthly wages not exceeding one thousand rupees in any such capacity as is specified in Sch. II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them."
The concluding part of the clause which states that any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them, is very significant. For all practical purposes it enlarge the definition of 'workman' so as to bring within its compass the dependants of the workman and when this part of the clause is brought to bear on the interpretation of S. 9, the relevant part of that section would surely be reasonable thus:
"...... or pass by operation of law to any person except the workman (who bas been injured) and (where the workman is dead) his dependants".
This means that if S. 9 is interpreted in the light of the definition in the said CL. (n); that section should apply not only to a workman who is alive and to whom compensation is payable but also to one who is dead and whose dependants are in a position to receive the compensation. The word 'workman' as occurring in S. 9 would thus mean the workman himself if he is alive and his dependants if he is not. The opinion to the contrary expressed in the Bench decision having been arrived at without a reference to that definition must be held to have been based on an erroneous reading of S. 9 which rules out the passing of compensation by succession to heirs of a deceased workman who are not his dependants.
4. The interpretation of S. 9 just above arrived at by me finds support from the object and various other sections of the Act. Prior to the passing of the Act, a workman who suffered injury had no remedy except when his case entitled him to damages under the law of torts. It was the Act which entitled him to compensation for injury and to his dependants for his death in case such injury or death had resulted from an accident arising out of and in the course of his employment. The preamble o the Act reads:--
"Whereas it is expedient to provide for the payment by certain classes of employers to their workman of compensation for injury by accident; it is here by enacted as follows:--"
The object of the Act was thus to make provision for the payment of compensation to a workman only, i.e., to the concerned employee himself in case of his surviving the injury in question and to his dependants in the case of his death this being so in view of the definition contained in CL. (n) of sub-s. (1) of S. 2 and to nobody else (as would appear from the discussion which follows). Section 3 of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation 'in accordance with the provisions of this Chapter'. This section is completely silent about the person to whom compensation is payable. Section 4 deals with a quantum of compensation which is to be assessed with reference to the provisions of schedules I and IV to the Act.
This section is also silent as aforesaid and when coupled with the provisions of schedule IV makes compensation payable in a lump sum when the injury in question results in death or permanent total disablement of the worker involved in the accident and through half-monthly payments when such injury causes only temporary disablement. Section 4A lays down inter alia that compensation under S. 4 shall be paid as soon as it falls due. This section also does not mention the person or person entitled to the compensation and the same is true of Ss. 5, 6 and 7 which deal with the method of calculating wages, review and commutation of half-monthly payments. Then comes S. 8 which may be quoted here in extenso:
"8(1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a whom or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation not exceeding an aggregate of one hundred rupees, and so much of such aggregate as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such, compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under sub-s. (1) as compensation in respect of a deceased workman the Commissioner shall deduct therefrom the actual cost of the workman's funeral expenses, to an amount not exceeding fifty rupees, and pay the same to the person by whom such expenses were incurred, and shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied, after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under sub-s. (4), be apportioned among the dependants of the deceased workman or nay of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner be allotted to any one dependant.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during is disability, in such manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to any other person whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case;
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
(9) Where the Commissioner varies any order under sub-s. (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered in the manner hereinafter provided in S. 31."
Under sub-s. (1) of this section lump sums payable as compensation-
(a) in respect of a workman whose injury has resulted in death, or
(b) to a woman or a person under a legal disability, must be deposited with the Commissioner and cannot be paid directly by the employer. The sub-section would embrace lump sums payable to the dependants in case of the workman's death as a result of the injury as also in the case of his death not resulting from the injury. In other words, the sub-section would come into play in the case of a workman whose injury has resulted in death in the case of a workman who has not died as a result of the injury, but is a whom or a person under a legal disability and also in the case of a workman who dies other wise than the result of an injury but whose dependant entitled to the compensation is a who man or a person under a legal disability. Sub-section (2) then enables employers to deposit with the Commissioner any sum payable as compensation which is not less than Rs. 10, even though it is not compulsorily depositable with him under sub-s. (1). Sub-sections (4) and (5) enumerate person to whom compensation is payable and these sub-sections comprise the only provisions dealing with that subject. According to sub-ss. (4) and (5) the compensation deposited under sub-s. (1) in respect of the workman whose injury has resulted in death or who is otherwise dead the expression used is 'the deceased workman' in contradistinction to the expression 'a workman whose injury has resulted in death' which appears in sub-s. (1) is payable as follows:--
(a) Cost of the workman's funeral expenses not exceeding Rs. 50 is payable to the person by whom such expenses incurred.
(b) If there are any dependants to the deceased workman the compensation is to be apportioned among them in such proportion as the Commissioner thinks fit.
(c) If no dependants exist, the balance of compensation (after the payment of funeral expenses as aforesaid) is to be returned by the Commissioner to the employer.
Sub-sections (6) and (7) deal with the manner of payment when the person entitled thereto is a woman or a person under a legal disability and also when such is not the case. Sub-sections (8) and (9) give the Commissioner the power to vary an order apportionment or mode of payment.
This analysis of the provisions of Section 8, especially that of sub-s. (4) which enjoys refund of the compensation to the employer in case no dependants are forthcoming, leaves no room for doubt that the Act was not intended to benefit any person except the workman and his dependants. And there are good reasons for the object of the Act being so restricted. As already stated prior to the enforcement of the Act a workman had no remedy in respect of any injury arising from an accident attributable to his employment unless he was entitled to damages in tort. It was the Act which for the first time provided a remedy for accidental injuries to a workman even though his employer could not be held responsible therefor and even though it had resulted from an accident for which perhaps the workman himself was to blame. It was in these circumstances reasonable to extend the benefit which the Act provided for the workman himself in respect of the injury to his dependants only and to no others. The expression 'dependant' is thus defined in Cl. (d) of sub-s. (1) of S. 2 of the Act:
" 'Dependant' means any of the following relatives of a deceased workman, namely:--
(i) a widow, a minor legitimate son, and unmarried legitimate daughter, or a widowed mother; and
(ii) if wholly dependant on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years who in infirm;
(iii) if wholly or in part dependant on the earnings of the workman at the time of his death,
(a) a widower,
(b) a parent other than a widow mother,
(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate if married and a minor or if widowed and a minor,
(d) a minor brother or an unmarried sister or a widowed sister if a minor,
(e) a widowed daughter-in-law,
(f) a minor child of a pre-deceased son,
(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(h) a paternal grandparent if no parent of the workman is alive;"
A look at this definition of the term 'dependant' would show that it is not intended to benefit all the heirs of a deceased workman, but to embrace only those relations who, to some extent, depend upon him for their daily necessities, so much so that even some of his nearest and dearest ones, viz., sons who have attained majority, married daughters, and an illegitimate daughter, whether married or unmarried are excluded if they were not dependant on the worker's earnings, wholly or in part. Kinship coupled with dependency, is thus made the sole criterion for a person to fall within the ambit of the definition. And if that be so, there is no reason why the benefit of the Act should go to heirs other than 'dependants' and S. 9 coupled with the definition in CL. (n) of sub-sec. (1) of S. 2 be given a restricted meaning in derogation of the language used by the legislature. To hold otherwise and to extend the benefit of the Act to the legal representatives of the deceased workman or of the dependants would be to burden the employer with liability not flowing from the object which the Act sought to achieve and to pass the benefit provided by the Act to persons altogether outside the class contemplated by it.
5. Further assistance in this regard is available from the provisions of S. 23 of the Act and the rules framed thereunder. that section is reproduced below:--
"The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witness and compelling the production of documents and material objects and the Commissioner shall be deemed to be a Civil Court for all the purposes of S. 195 and of Chapter XXXV of the Code of Criminal Procedure, 1898."
Rule 41 of the Workman's Compensation Rules, 1924, (hereinafter called the Rules) lays down:
"Save as otherwise expressly provided in the Act or these rules the following provision of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in O. V. Rr. 9 to 13 and 15 to 30; O. IX; O. XIII, Rr. 3 to 10; O. XVI, Rr. 2 to 21; O. XVII, and O. XVIII, Rr.1 and 2, shall apply to proceedings before Commissioners, in so fas as they may be applicable thereto:
Provided that-
(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interests of the parties will not thereby be prejudiced."
A combined effect of S. 23 of the Act and R. 41 of the Rules is that only certain provisions of the Code of Civil Procedure and not others have been made applicable to proceedings under the Act. Order XXII which deals with legal representation in cases where parties to proceedings die is conspicuous by its absence from R. 41 and lends further strength to the conclusion above arrived at that such representation was not contemplated in case falling under the Act.
6. I shall now take up for consideration the other case cited at the Bar in support of the stand of the respondents. The first of them is Pasupati Dutt v. Kalvin Jute Mills (AIR 1937 Cal 495) decided by Derbyshire, C.J., and B.K. Mukherjee, J. Reference by the learned Judges was made to the provisions of Ss. 2(1)(d), 3(1), 4(1) and 8 of the Act which they proceeded to interpret in conformity with the decision reported as United Collieries Ltd. v. Simpson (1909 AC 383) a case under the English Workman's Compensation At wherein the House of Lords held that the right to compensation for injuries suffered by a workman who is dead passes to the executor of a sole dependant who had died without having made a claim. The provisions of S. 9 and of CL. (n) of sub-sec. (1) of S. 2 of the Act, however, were not brought to the notice of the learned Judges and provisions analogous thereto were not to be found in the English statute which, on the other hand, as it then stood, contained in S. 13 a definition of 'workman', the concluding portion of which is as follows:--
"any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants of other person to whom or for whose benefit compensation is payable."
(emphasis mine).
The effect of this part of the definition clearly is to include a legal personal representative of a deceased workman in the body of persons to whom the English Act made compensation payable. The words 'legal personal representative' were perhaps advisedly omitted by our legislature when the Act was promulgated and this difference between the two statutes would make the dictum of the United Collieries case inapplicable to the interpretation of the Act. It is noteworthy that the English Act was repealed and re-enacted in 1925 and the law laid down in United Collieries case was deliberately altered by the English legislature through a provision contained in S. 2(3) of the new Act. That section reads:
"Where a dependant dies before a claim under this Act is made., or if a claim has been made before an agreement or award has been arrived at or made, the legal personal representative of the dependant shall have no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the workman".
The Calcutta Division Bench did note this change, but noted on the United Collieries case with an observation that there was no provision in the Act corresponding to S. 2(5) of the English Act. Really this erroneous observation stemmed from the fat that provisions of S. 9 and of CL. (n) of sub-s. (1) of S. 2 of the Act were not brought to their judgment must be held to be erroneous.
7. My comment on the Calcutta case applies equally to Radhakrishna Rice Mill v. Appalacharyulu (1958-1 Andh WR 316) decided by Manohar Pershad, J., who noted the definition of the term dependant' in S. 2(1)(d) as also the provisions of Ss. 3, 4 and 8 of the Act. In regard to S. 9, however, he merely said:
"Section 9 refers to non-assignment and non-attachment of compensation amount."
The relevant part of S. 9 under which the passing of compensation by operation of law to any person other than the workman is barred does not appear to have been brought to his notice, nor again the definition of workman in S. 2(1)(n). He did note that under S. 8 none except the dependants had a right to compensation, but then went on to say:
"A duty to refund the amount of compensation arises only when there is no dependant 'in existence' and this must mean, 'in existence' at the time of the workman's death, i. e., at the time of the death of Bullamma. To put any other interpretation would be to frustrate the object of the Act, and place the right to compensation on an uncertain contingency. The contention of Sri Neti Subrahmanyam is that the dependant does not get any vested right and till the amount is actually distributed it cannot be said that the dependant acquires any fight. This argument is equally devoid of force. As stated earlier, after the deposit is made by the employer, the Commissioner has to find out who the dependants are so that he might effect the distribution among them. It is therefore clear that once an allotment of compensation to money among several other dependants is made, the compensation allotted becomes the property of the dependants and if the dependant dies, the said amount being his property would devolve on his or her heirs."
For this conclusion the learned Judge found support from the Madras and Calcutta decisions above discussed and also from the United Collieries case (1909 AC 383)(supra). I have already shown that out of the three cases last mentioned, the first two do not lay down good law, and the same is true of the Andhra case in which also the provisions really relevant to the determination of the point in dispute were not noticed.
8. The next case cited on behalf of the respondents in Margarida Gomes v. M. Mackenzie and Co., the discussion in which suffers from the same drawback as attended the Calcutta decision above cited and which makes no reference to Ss. 2(1)(n) and 9 of the Act, but, on the other hand, follows the United Collieries case (1909 AC 383) in holding that the liability under the Act 'is created immediately on the accident occurring to the workman suffering injury and must amount to a debt payable to the workman' (and therefore form a part of his estate which is heritable).
9. The last case from which support was sought by learned counsel for the respondents in Manubhai K. & Co. v. Babajee in which K. K. Desai J., held that the provisions of O. XXII of the Code of Civil Procedure and of the Limitation Act not having been made applicable to applications for compensation made under the Act 'there is nothing in law to suggest that applications for compensation under the Act cannot be continued by heirs of deceased applicants'. In this connection, he observed (at p. 268):
"There is no time fixed within which heirs of deceased applicants must come on record to enable them to continue the applications originally filed by deceased applicants. Applications filed under the above Act being for recovery of money must be held to be in respect of rights to debts which survive to heirs of deceased applicants. As the right to the debts was not personal right of the deceased applicants, the opponent as his widow was entitled to continue the original application in her own right. The debt survived to the opponent and was claimable by her. As the debt survived, the application cannot be held to have abated at any date. This is so because the provisions in Order 22 of the Code of Civil Procedure are not made applicable to applications made under the Act."
These observations were made without reference to the relevant provisions of the Act which, as already shown by me, negative the rights of the heirs of a deceased workman or dependant to legal representation.
10. In the result, the petition succeeds and is accepted and the impugned order is quashed. In view of the complicated question of law involved, the parties are however left to bear their own costs.
11. Petition allowed.