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Gurdit Singh Natha Singh Vs. Employees State Insurance Corporation - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 89 of 1959
Judge
Reported inAIR1961P& H109; (1960)IILLJ446P& H; (1960)IILLJ446P& H
ActsEmpolyees' State Insurance Act, 1948 - Sections 53; Empolyees' State Insurance Rules - Rules 4 and 5
AppellantGurdit Singh Natha Singh
RespondentEmployees State Insurance Corporation
Appellant Advocate K.N. Tewari, Adv. for; M.R. Mahajan, Adv.
Respondent Advocate Harparshad, Adv.
DispositionAppeal dismissed
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........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 workmen's 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 workmen's compensation act, 1923 (viii of 1923) from the corporation and not from the employer or other person.(ii) if.....
Judgment:

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 Workmen's 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 Workmen's 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 Workmen's 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:--

'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 rate;

(b) for permanent partial disablement, at a percentage of the full rate as provided in Section 4 of the Workmen's Compensation Act, 1923 (VIII of 1923), for life;

(c) for permanent total disablement, at the full rate for life;

(d) in cases of disablement not covered by Clauses (a), (b) and (c) above as may be provided in the regulations.

(ii) in the case of the death of the person, to his widow and children as follows:--

(a) to the widow during the life or until remarriage an amount equivalent to three-fifths of the full rate and, if there are two or more widows, the amount payable to the widow as aforesaid shall be divided equally between the widows;

(b) to each legitimate or adopted son, an amount equivalent to two-fifths of the full rate until he attains fifteen years of age;

(c) to each legitimate unmarried daughter, an amount equivalent of two-fifths, of the full rate until she attains fifteen years of age or until marriage, whichever is earlier;

Provided that the Corporation may continue such benefit to any legitimate or adopted son or any legitimate unmarried daughter until he or she attains the age of eighteen years if such son or daughter continues education to the satisfaction of the corporation:

Provided further that if the total of the dependants' benefits distributed among the widow or widows, legitimate children or adopted son of the deceased person as aforesaid exceeds at any time the full rate, the share of each of the dependants shall be proportionately altered, so that the total amount payable to them does not exceed the amount of disablement benefit at the full rate.

(5) In case, the deceased person does not leave a widow or legitimate child, dependants' benefit at such rates as may be determined by the Employees' Insurance Court having jurisdiction, shall be payable as follows:--

(a) to a parent or grand-parent, for life;

(b) to any other male dependant, until he attains fifteen years of age;

(c) to any other female dependant, until she attains fifteen years of age or until marriage, whichever is earlier, or if widowed until she attains fifteen years of age'.

If these provisions are read together, it is abundantly clear that Sections 53(2) and 53(3) are mutually exclusive. Rule 4 covers cases under Section 53(2) and Rule 5 those under Section 53(3). It is significant that in Rule 4 while providing for the contingency of remarriage it is not provided that the dependants' benefit will go to the parents, whereas Rule 5 only comes into play in case the deceased person does not leave a widow or a legitimate child or children.

4. It seems to me that these provisions of the Act do work a hardship on the parents, who are really dependant on the deceased, but this is a defect, which the legislature can only supply. The Courts are merely concerned to interpret the provisions of the law as they stand and they cannot add to the same.

For the reasons given above, this appeal fulls and is dismissed, but there will be no order as to costs.


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