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Pasupati Dutt Vs. KelvIn Jute Mills - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata
Decided On
Reported inAIR1937Cal495
AppellantPasupati Dutt
RespondentKelvIn Jute Mills
Cases ReferredLtd. v. Simpson (or Hendry
Excerpt:
- .....in my view therefore, upon the death of the workman, each member of the class acquires a right to claim compensation and that right vests in him. that dependant may thereafter be divested of that right or find it of no value because the commissioner decides to award the compensation amongst other members of the class.8. here the only person in the class of dependents at the death of the workman was the applicant's mother. consequently the right to the compensation money vested in her. it was not competent in my view for the commissioner to divest her of that right. therefore it remained vested in her to the time of her death. upon her death the right passed to her heirs or legal representatives subject to the conditions of the succession act, being complied with. in my view 'dependant'.....
Judgment:

Derbyshire, C.J.

1. The appellant appeals from a decision by the Commissioner, Workmen's Compensation, Bengal, whereby the Commissioner declined to award the appellant any sum of compensation in respect of the death of a work-man killed by an accident arising out of and in the course of his employment. The facts are as follows: On 5th October 1934, one Hari Charan Day, the head engine driver in the Kelvin Jute Mills, was injured at his work. He died on 13th October 1934. The only person who could claim to be dependant upon the deceased within the meaning of the Act was one Kalo Moni Dutt. She was the daughter of the deceased but a widow. She had one son, the appellant, now aged seven years, then aged five years, who lived with her in the house of her father, the deceased workman. On 24th November 1934, the employers, pursuant to Section 8(1) of the Act, deposited with the Commissioner, Workmen's Compensation, the sum of Rs. 3,500 in respect of their obligations under the Act. On 29th November 1934, Kalo Moni Dutt died leaving the appellant surviving her. On 25th April 1935, the Commissioner heard the application of the appellant (through his uncle) for an award to be made in his favour of the compensation, viz., Rs. 3,500. The Commissioner rejected this application on the ground that no dependant within the meaning of the Act then (i.e., on 25th April 1935) existed. Accordingly he ordered the compensation money to be repaid to the employers under Section 8(4) of the Act.

2. The relevant provisions of the Act are as follows: Under Section 2(1)(d) a 'dependant' includes a widowed daughter if wholly or in part dependant on the earnings of the workman at the time of his death. (The child of such widowed daughter is not a dependant within the section). Section 3(1) 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.

3. There is a proviso, but neither that nor the rest of the section affects the present case. Sub-s. (2) of Section 3, deals with the case of contraction of the occupational diseases. Sub-s. (3) gives the Governor-General in Council power to add to the schedule of occupational diseases. Section 4(1) provides that:

Subject to the provisions of this Act the amount of compensation shall be as follows, namely: (a) Where death results from the injury.

4. Then follow provisions specifying how the amount of compensation is to be ascertained. Section 8(1) provides that:

No payment of compensation in respect of a workman whose injury has resulted in death... shall be made otherwise than by deposit with the commissioner.

Sub-section (4): On the deposit of any money under Sub-section (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 twenty five 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 dependents 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 enquiry 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.

Sub-section (5): Compensation deposited in respect of a deceased workman shall, subject to any deduction made under Sub-section (4), be apportioned among the dependents of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant.

Sub-section (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.

5. The appellant contends that the right to compensation vested in his mother on the deceased workman's death and that after his mother's death and upon his obtaining a Succession Certificate, that right passed to him under the Succession Act and so he is entitled to the compensation money. On the other hand the employers contend that if no dependant exists at the time when the Commissioner makes the inquiry the money is repayable to them. A somewhat similar case arose under the English Workmen's Compensation Act, 1906, viz., United Collieries, Ltd. v. Simpson (or Hendry) (1909) A C 383 where a workman, whilst in the employment of a Colliery Company was knocked down by a wagon in the course of his employment on 9th July 1907. He died of his injuries on 14th July. His mother, alleged to have been dependant upon him, died on 16th October 1907, without making any claim upon the appellants. Her executrix made a claim on 10th December 1907, under the Workmen's Compensation Act, 1906, as representative of the mother. The House of Lords found some difficulty in coming to a decision, but the majority held (Lord Dunedin dissenting) that the right of the dependant of the deceased workman passed to the executor of a sole dependant who had died without having made a claim. I think the reasoning of Lord Loreburn (p. 389) is applicable here. In discussing the English Act of 1906 he says:

Paragraph 5 of the Schedule requires payment in the case of death unless otherwise ordered or hereinafter provided into the county Court, to be dealt with in discretion 'for the benefit of the persons entitled thereto under this Act'. This is, no doubt, in order to relieve the employer and ensure a proper custody, distribution, and application of the money especially where there are minors or several dependents, or where there are persons for whom the county Court Judge thinks it advisable to take precautions. Para. 8 also contemplates payment to a dependant. And though the ninth reserves a power to vary the apportionment, neither it nor any other paragraph proceeds upon any other view than that there is a definite right on the part of dependents as a class to the money, subject to a parental power of the Court in dividing and applying it for their advantage. If there is this right, when does it arise or become vested? The statute evidently treats it as arising because of the workman's death. It seems to follow that it arises on the workman's death, unless some other event is fixed.

6. At p. 390 he remarks:

I observe that in Lord M'Laren's opinion, if the claim is made within the statutory period, and the dependant dies before an award has been made, the right to an award of compensation has vested in the dependant, and a right to follow out the proceedings in the arbitration passes to the legal personal representatives. But if the claim has not been made, his Lordship thinks that the employer's liability is terminated by the death of the dependant That opinion is entitled to the greatest respect, but I cannot agree. I cannot see why the claim instead of the death is to be regarded as the signal for the right to compensation vesting. And even if it were so, the Act does not require that the dependant himself should make the claim, and I do not see why that right to make the claim should not pass to the executor. It seems to me therefore that, as the person represented by the respondent was the only dependant, her representative may properly claim all that she was entitled to the right being transmissible as property.

7. Applying a similar process of examination and reasoning to the Indian Act, my own view is that Sections 3 and 4 make the employers liable to pay compensation upon the death of the workman and fix the amount which has to be paid. Section 8(5) gives a right to the dependents of the deceased workman as a class, but not individually, to that compensation money. The Commissioner may apportion the compensation money amongst such members of the class as he thinks proper, even to the extent of allotting the money to, one dependant only. It does not give the Commissioner the right to deprive the whole of the class of dependents of the compensation money. In my view therefore, upon the death of the workman, each member of the class acquires a right to claim compensation and that right vests in him. That dependant may thereafter be divested of that right or find it of no value because the Commissioner decides to award the compensation amongst other members of the class.

8. Here the only person in the class of dependents at the death of the workman was the applicant's mother. Consequently the right to the compensation money vested in her. It was not competent in my view for the Commissioner to divest her of that right. Therefore it remained vested in her to the time of her death. Upon her death the right passed to her heirs or legal representatives subject to the conditions of the Succession Act, being complied with. In my view 'dependant' in Section 8 includes the heirs or legal representatives of the dependant as defined by Section 2 where the dependant has died since the death of the workman. It is noteworthy that in the English Workmen's Compensation Act of 1925, which replaced the Act of 1906, it is provided in Section 2(3):

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.

9. This was obviously intended to alter the law as laid down in United Collieries, Ltd. v. Simpson (or Hendry) (1909) A C 383. There is no corresponding provision in the Indian Act. If the conclusion at which I have arrived is wrong the position would be that the right to compensation would depend upon the accident of the time when the Commissioner made his inquiry or when the dependant dies. If the Commissioner were delayed in making his inquiry through some cause such as a heavy list or some other unavoidable delay, dependants might die uncompensated after suffering privations through the loss of the workman upon whom they were dependant. I cannot think that such is the position under the Act.

10. I am of the opinion therefore that the Commissioner was wrong in law in the award he made, and that before ordering the return of the compensation money to the employers he should have satisfied himself that no dependant within 8. 2, or heir or legal representative of such dependant who has died since the death of the workman, existed at the date of the inquiry. The matter will go back to the Commissioner for him to deal with it upon the lines indicated above. The appellant will have the costs of this appeal here, but the costs of the first hearing will be left to abide the result of the further hearing by the Commissioner. The hearing-fee in this Court is assessed at five gold mohurs.

B.K. Mukherjea, J.

11. I agree with my Lord the Chief Justice in the judgment that has just now been delivered, and I would desire only to add a few words. The point in controversy in this appeal is, as to whether on the death of a workman through some accident arising in course of his employment, a right to the compensation, payable by the employer under the Workmen's Compensation Act, does vest in his dependant or dependants actually existing at the time of his death; and if Such dependant dies before any claim, to such compensation is made or investigated, does the right pass on to his heirs or legal representatives? The second part of the question does not really present any difficulty. The doctrine 'acto personalis moritur cum persona' does not form part of the law of this country: see Bhupendra Narayan v. Chandramoni Gupta : AIR1927Cal277 . Section 306, Succession Act, embodies the statutory provision as regards devolution of rights and liabilities of the deceased upon his legal representatives. The right to demand compensation payable under a statute is certainly not founded on tort, and does not come within any of the exceptions that are mentioned in Section 306, Succession Act. It is really not disputed on behalf of the respondent, that if the right accrued in favour of the appellant's mother during her lifetime it would devolve on her legal representatives at her death. What is disputed is that any right could accrue in favour of a dependant at all till the enquiry is finished by the Commissioner and the distribution order is made. The answer to this question has got to be found in the relevant sections of the Workmen's Compensation Act, relating to payment and distribution of the compensation. Section 3 of the Act lays down 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.

12. Section 4 lays down the rules for determination of the amount of compensation. Section 8(1) then says that:

Where the injury has resulted in death, no payment of compensation shall be made otherwise than by deposit with the Commissioner.

13. Under Clause 4 of that section the Commissioner after he receives the deposit has got to give notice on each dependant, and if he is satisfied on enquiry that no dependant exists he has to refund the money to the employer. In case dependants exist, the money may be distributed amongst them in such manner as the Commissioner thinks proper, and may in his discretion be allotted to one dependant only to the exclusion of the rest. Mr. Banerji, on behalf of the respondent, contends that these provisions make it perfectly clear that the dependant or dependants do not acquire any right in the compensation till the order is passed by the Commissioner after enquiry under Clause (5) of Section 8, and if there is no dependant actually living at the time when the award is made, there is no other course open to the Commissioner but to refund the money to the employer. This contention, in my opinion, is not tenable. It is true that Section 3 which imposes the liability upon the employer to pay compensation, does not specify the person or persons to whom it is payable, but Section 8 makes it clear that nobody has any right to it except the dependants, and this is the case, whether the compensation is paid direct or through the Commissioner. In certain cases the compensation has to be deposited with the Commissioner, and this is for ensuring its safe custody and equitable distribution, particularly when there are more dependants than one, but though the Commissioner has got the entire discretion in the matter and can allot the entire amount to one dependant, he cannot deprive the sole dependant of any portion of the compensation, nor can give any portion of the same to one who is not a dependant.

14. The right therefore accrues to the dependants as a class, subject to the Commissioner's rights of distribution in such way as he thinks proper, and in case of a sole dependant it vests absolutely, and as it is a right which has been given to the dependants because of the workman's death, it must be deemed to accrue at the time of his death, there being no ground of postponing it to a further date. A duty to refund the compensation arises only when there is no dependant 'in existence' and this must mean 'in existence' at the time of the workman's death. 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 enquiry before the Commissioner may be delayed for various reasons, and people who really depended upon the earnings of the deceased workman might die before or pending the enquiry and even just before the Commissioner makes the award. To say that the Commissioner is bound to refund the money to the employer under such circumstances would be to put an extremely narrow and unjust construction upon the section, which is not borne out by the purpose of the Act or the actual words used. As my Lord the Chief Justice pointed out in his judgment, the House of Lords in England took a similar view in United Collieries, Ltd. v. Simpson (or Hendry)(1909) A C 383 upon construction of the English Workmen's Compensation Act of 1906. The English Act also provided for payment of the compensation into the County Court, which could deal with it in its discretion, and divide it in such manner as it thought best among the dependants of the deceased workman. It is true that there was no provision for refund of the money to the employer in the English Act of 1906, but that is really not very important as on total absence of any dependant the money could not really be retained by the County Court, and would have to be returned to the employer in exercise of its inherent powers.

15. Mr. Banerjee for the respondent lays stress on the fact that in the English Act of 1925 an express provision was inserted in Section 2, C1. (3) under which the legal representative of a dependant had no right to the compensation payable to the latter, but here again it is significant to note that the Indian Act was amended on various occasions even after 1925, but the Indian Legislature did not think it proper to introduce any provision like the one mentioned above. It may be said indeed that to hold that the dependant's right to compensation is a vested right which passes to his legal representative would be to put an additional burden upon the employer, the effect of which might be to enrich the strangers and persons totally outside the scope of the Act, but the result would be exactly the same if the dependant dies the very day after receiving the compensation. For all these reasons I agree that the appeal should be allowed, and the case remanded to the Commissioner for investigation as to whether the appellant's mother was really a dependant within the meaning of Section 2(d)(ii), Workmen's Compensation Act. Of course the question as to whether the appellant is the legal representative of the deceased dependant, cannot be gone into before the Commissioner. It must be established by letters of administration or such other proof as the law provides for establishing such rights.


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