1. This is an appeal against an order of the Commissioner for Workmen's Compensation awarding a sum of Rs. 550 to the father of one Hajee Peera Sahib who was injured in an accident arising out of his employment by the appellant, on 8th February, 1939. The injury was caused to has left hand, and from it he developed tetanus and died on 16th February.
2. One point raised in the appeal is that the death of Hajee Peera was due to his own fault in not having his injury treated by a qualified medical man and that if that had been done, the injury could eaily have been cured. It is unnecessary however for Us to discuss this question as the appeal must in our opinion succeed upon another point.
3. The point put simply is, that the respondent had no locus standi to make the application to the Commissioner. He is not a dependent of the deceased workman within the meaning of the definition of 'dependent' in the Workmen's Compensation Act. This point, it may be mentioned, was made in the counter-affidavit of the appellant to the respondent's claim. The Commissioner however has failed to appreciate the significance of this objection. In the second paragraph of his order he states, as if the matter admitted of no argument, that 'the applicant is a dependent of the deceased as defined in Section 2 (1) (d) of the Workmen's Compensation Act. He then goes on to say that
the questions, whether he was wholly or partly dependent on the earnings of his son at the time of his death and whether he is entitled to compensation, if awarded, do not arise now. They are matters for adjudication in distribution proceedings, which are different from these proceedings.
Apparently the Commissioner had in mind the possibility of rival claimants to the compensation, and other dependents of the deceased workman existing who might object to the whole of the compensation to be awarded to be paid to the respondent. The Commissioner has entirely failed to apply his mind to the definition of a 'dependent' in Section 2 (1) (d) of the Act after the amendment of 1933. It is true that before 1933, any parent of a deceased workman was a dependent under the definition, whether he in fact relied upon the earnings of the workman for his maintenance or not. As amended however, the Act includes in the term 'dependent' without any further qualification, only the wife, minor legitimate son, unmarried legitimate daughter or widowed mother. For the father of a deceased workman to be adjudicated a dependent, he must show under Sub-section (2) that he was wholly or in part dependent on the earnings of his son at the time of his death. On this point there is no evidence. As already stated, the Commissioner has not apparently devoted his attention to the point at all. The applicant gave evidence and did not say that fee was wholly or in part dependent upon the earnings of his son : nor has any other witness given any evidence which could justify any such finding. It is unfortunate that in this appeal the respondent has chosen to remain ex parte. But we have no serious doubt that the omission of the respondent to give this evidence was 'due not to any negligence on his part or any belief that the evidence was unnecessary, but to the fact that he could not have been in fact dependent upon his son's earnings. In the circumstances of this case, we do not think it necessary to call upon the Commissioner to hold any further enquiry into this question whether the respondent satisfied the definition 'dependent' as contained within the Act.
4. We must allow the appeal and set aside the order of compensation as one which the Commissioner had no jurisdiction to pass on an application by the respondent. The money deposited by the appellant must therefore be returned to him.
5. We make no order as to costs.