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Employees compensation act,1923

(Querist) 12 May 2016 This query is : Resolved 
Sub sec d of sec 2 of Employees Compensation Act,1923 states who are the dependants of the deceased employee.Under clause (iii),certain category of persons are stated as dependants.My doubt is as under.In a given case where the woman employee died left no child and husband also predeceased.The parents of the husband/brothers and sisters of deceased husband are no more. The Tahsildar has given a II class legal heir certificate in favour of sons/daughters of brother of the deceased women where the brother of deceased woman already expired. Further, the deceased woman employee was living with the son of the deceased brother of her during the time when the accident occurred Whether as per the definition of dependants in Sub sec d of sec 2 of Employees Compensation Act,1923, the legal heirs can be considered as dependants of the deceased woman employee. If so the relevant decision/amendment may be furnished
Kumar Doab (Expert) 13 May 2016
This is based on limited understanding from the matter in post.

You have posted that:

"The Tahsildar has given a II class legal heir certificate in favour of sons/daughters of brother of the deceased women where the brother of deceased woman already expired. "


This hints that the deceased woman was Hindu.

Apparently the tehsildar has not erred.


Apparently the deceased woman employee has not left any WILL.
P.ESAKKIMUTHU (Querist) 13 May 2016
Thank you for your kind response. What is the conclusion? the II class legal heir can be considered as dependant of deceased women employee under Sub sec d of sec 2 of Employees Compensation Act,1923.Kindly clarify
H.M.Patnaik (Expert) 13 May 2016
In the given circumstances, the answer is Yes .
Kumar Doab (Expert) 13 May 2016
Repeated at:


http://www.lawyersclubindia.com/experts/Employees-compensation-act-1923-598586.asp#.VzWTRjV97IU


Pls keep one thread.

The discussion is interesting.
Kumar Doab (Expert) 13 May 2016

>>> THE WORKMEN’S COMPENSATION (AMENDMENT) BILL, 2009
(AS PASSED BY THE HOUSES OF PARLIAMENT)

Amendment of section 2;

6. In section 2 of the principal Act, in sub-section (1)
(i) after clause (d), the following clause shall be inserted, namely:—
‘(dd) “employee” means a person, who is...

http://rajyasabha.nic.in/rsnew/legislation/65OF2009.pdf



Thus no amendment seems to have been made to Sub sec d of sec 2 of Employees Compensation Act,1923 ( as pointed out by you).



file:///C:/Users/Login/Desktop/Workmen_Compensation_Act.pdf


You have already pursued: 2(d) (iii), as it exists as on date.



Rest you can check with Ministry of Labor.



>>> Hindu Succession laws;


The property of a female Hindu dying without WILL shall be distributed:

--Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;


--Secondly, upon the heirs of the husband

--Thirdly, upon the mother and father


--Fourthly, upon the heirs of the father

--Lastly, upon the heirs of the mother .




>>> You may also puruse:

Supreme Court of India
Lachman Singh vs Kirpa Singh & Others on 14 April, 1987
https://indiankanoon.org/doc/1352575/
Rajendra K Goyal (Expert) 13 May 2016
Agree with the expert Kumar Doab.
T. Kalaiselvan, Advocate (Expert) 14 May 2016
The tahsildar cannot give legal heirship certificate to class II legal heirs, he is empowered to give list of close relatives surviving the deceased. The successors in interest to the deceased can be declared only by court of law by filing a succession certificate by the vested interests.
The question about deciding the dependents under section 2 employees compensation act, 1923 also depends on the court verdict.

The provision of law referred to by you above in your query does not states anything which is relevant to your understanding of the provisions of referred law.
I repeat the provisions for your reference and refreshing your knowledge

(iii) if wholly or in part dependent on the earnings of the workman at the time of his death, (a) a widower, (b) a parent other than a widowed 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 a 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;]

Thus a succession certificate from a court competent shall be the solution to your problem.
Kumar Doab (Expert) 14 May 2016
Fellow Expert and companion Mr. T. Kalaiselvan has touched upon very imp. points.


The public at large, employees and clients, have indeed faced such issues.



The following posts shall be useful and relevant.



The terminology ClassI, ClassII has been assigned to while deciding succession/heir ship of Hindu Male.



Central Government Act
The Hindu Succession Act, 1956:

8. General rules of succession in the case of males.
15. General rules of succession in the case of female Hindus.—



https://indiankanoon.org/doc/685111/



The tehsildars have been vested with rather instructed by courts of law and subsequent GO, to issue Legal Heir Certificate:


--to siblings of those who die as bachelors or spinsters

--not to refuse to issue legal heirship certificates on the ground of delay in making applications

etc etc...

Kumar Doab (Expert) 14 May 2016
Tahsildars cannot refuse to issue legal heir certificates to siblings of those who die as bachelors or spinsters by citing difficulties involved in ascertaining the genuineness of their relationship, the Madras High Court Bench here has held.



Justice K.K. Sasidharan passed the ruling while allowing a writ petition filed jointly by two brothers and their sister. They had challenged an order passed by Madurai South Tahsildar on September 17 rejecting their plea to be declared as legal heirs of their elder brother who died intestate on August 8.

In the order under challenge, the Tahsildar had claimed that he had no power to issue legal heir certificates to fathers, brothers and sisters categorised as Class II heirs under the Hindu Succession Act 1956. The Act classified sons, daughters, widows and mothers of the deceased as Class I heirs.
Wanting to find out the veracity of the Tahsildar’s claim, the judge asked a Special Government Pleader to find out if there were any government orders with regard to issuance of legal heirs. But after verification, he was informed that the government had not issued any comprehensive instruction on the issue.
Hence, the judge proceeded to decide the case on the basis of the provisions of the 1956 Act. During the course of arguments, the Tahsildar pleaded that it would be difficult for officers like him to ascertain the genuineness of claims made by those falling under Class II heirs.
Disagreeing with the pleading, Mr. Justice Sasidharan said that the revenue department armed with a wide network of Revenue Inspectors and Village Administrative Officers could not be heard to say that it would be difficult for it to ascertain genuineness of legal heir claims. “The problem of issuing legal heir certificate could be resolved if a workable method is adopted by the revenue authorities… The VAOs must keep a close watch on the village and update the information available with them,” the judge said.
In so far as the present case was concerned, the judge ordered the Tahsildar to take a decision on the petitioners’ claim by ordering an enquiry by the Revenue Inspector and VAO concerned and after verifying the birth certificates of the claimants apart from insisting them to file sworn affidavits.
He also observed that the Tahsildar could cancel the legal heir certificate and lodge a police complaint against the applicants if their claim was found to be false at a later point of time.




http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/court-ruling-on-issue-of-legal-heir-certificates/article4461104.ece
Kumar Doab (Expert) 14 May 2016
HC simplifies process of getting legal heirship certificates
• MOHAMED IMRANULLAH S.
PRINT • T T
inShare
9


AAG communicates court order to DROs in 13 districts
Henceforth, Tahsildars in southern districts might not refuse to issue legal heirship certificates on the ground of delay in making applications as Additional Advocate General (AAG) K. Chellapandian has communicated a court order on the issue to all the 13 District Revenue Officers (DROs) within the jurisdiction of the Madras High Court Bench here.



Justice T. Raja had held that delay in making applications could not be a ground to refuse legal heirship certificates. He had also directed the AAG to communicate the order passed by him to the DROs in Madurai, Dindigul, Sivaganga, Virudhunagar, Ramanathapuram, Tirunelveli, Tuticorin, Kanyakumari, Tiruchi, Pudukottai, Thanjavur, Theni and Karur.



Disposing of a batch of writ petitions, the judge said the High Court had been flooded with cases accusing the Tahsildars in various districts of refusing to issue legal heirship certificates and forcing the applicants to approach the lower courts just because the applications had been preferred after a few years since the death of the individuals concerned.



He recalled that way back in 2009, the High Court had ordered that there was no limitation on making such applications and, therefore, the revenue officials concerned should not shirk their responsibility of issuing the certificates. A similar order was passed on April 17, 2013, making it clear that delay in making applications was not a valid reason for denying legal heirship certificates.


Yet, the officials were continuing to reject applications in defiance of the court orders as well as a 2009 Government Circular which merely stated that legal heirship certificates should be issued after a thorough verification by the jurisdictional Village Administrative Officer (VAO). The circular also did not lay down a specific period within which the applications should be made.

After pointing out the anomaly, the judge recorded the observation of the AAG that he would ask the DROs within the jurisdiction of the High Court Bench to issue written instructions to all the Tahsildars, Revenue Inspectors and the VAOs not to reject applications on the ground of delay and to dispose of every application within a maximum period of four weeks.



http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/hc-simplifies-process-of-getting-legal-heirship-certificates/article5828720.ece
Kumar Doab (Expert) 14 May 2016
Kerala HC upholds key provision in Hindu succession law


TNN | Sep 8, 2013, 03.54 AM IST
KOCHI: If a Hindu woman dies without leaving a will and is not survived by her husband or children, legal heirs of her husband's family will have the right over the woman's property, the Kerala high court has held. The court's ruling came on a petition filed by TV Ramakrishnan, of Azhinilam in Malappuram, who is the brother-in-law of a deceased Hindu woman.



In the petition filed before the HC, the brother-in-law had challenged Ernad tahasildar's order declining to issue a legal heirship certificate to him for his deceased sister-in-law's property.



His counsel KA Salil Narayanan argued in the court that the tahasildar's order asking the brother-in-law to approach a civil court to obtain the certificate is illegal in all respects and without any regard to the provisions of the Hindu Succession Act governing the line of succession in the case of an intestate female.



When the petitioner's brother T V Sivasankaran died, a legal heirship certificate was issued to his wife M Hemalatha. Subsequently, she too died on July 6, 2009.

As the couple doesn't have children and as no other better-placed legal heir exists, the property has to go to the legal heirs of Hemalatha's deceased husband as per Hindu Succession Act, the counsel argued.



After an application for legal heirship certificate was filed by the brother-in-law, the tahasildar had conducted an enquiry through the village officer of Vazhayoor. Besides, he had sought a legal opinion from the district government pleader. After considering the enquiry report and the legal opinion, the tahasildar had rejected the application.
After perusing the legal opinion, the court said that the district government pleader had pointed out that there was no need, necessity, or occasion to cancel the legal heirship certificate issued to Hemalatha earlier.




Referring to the scope and mandate of Section 15 (b) of Hindu Succession Act, the state government's counsel submitted that legal heirs of the deceased husband (TV Sivasankaran) are entitled to succeed to the estate of deceased Hemalatha.


Ruling in favour of the brother-in-law, Justice PR Ramachandra Menon held, "After hearing both the sides and also going through the relevant provisions of law, this court finds that the doubt expressed by the tahasildar, relegating the petitioner to approach the competent civil court is not correct or sustainable."


Setting aside the tahasildar's order, the court asked the tahasildar to issue a legal heirship certificate to the brother-in-law for the deceased sister-in-law's property within a month.





http://timesofindia.indiatimes.com/india/Kerala-HC-upholds-key-provision-in-Hindu-succession-law/articleshow/22406724.cms


Kumar Doab (Expert) 14 May 2016
Madras High Court
Suganthi vs The Revenue Divisional Officer on 21 August, 2014








IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.8.2014
CORAM
THE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR
W.P.No.13304 of 2013
& M.P.No.1 of 2013

Suganthi ..Petitioner

Vs.

1. The Revenue Divisional Officer
Tambaram
Kanchipuram District.

2. The Tahsildar
Tambaram
Kanchipuram District.

3. M. Subburathinam ..Respondents




Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus calling for the records in Na.Ka.No.17/2013/E dated 8.2.2013 passed by the first respondent, quash the same as unsustainable in law and consequently direct the respondents to delete the name of Subburathinam (class-II Legal Heir) from the Legal Heir Certificate issued vide Pa.mu.No.5721/2011/A6 dated 2.12.2011 by the second respondent herein.



For Petitioner :: Mr.S. Parthasarathy

For Respondents :: Mr.V. Subbiah
Spl. Govt. Pleader
for RR1 and 2

Mr.S. Kanniah for R.3
--------


ORDER
This writ petition is filed to set aside the legal heir certificate issued by the first respondent dated 8.2.2013 and direct the first respondent to delete the name of the third respondent (Class-II Legal Heir) from the Legal Heir Certificate.



2. The case the petitioner is that her husband passed away on 24.10.2011. She was residing at Door No.228, G.S.T. Road, Chrompet, Jamin Pallavaram, Alandur Taluk, Chennai-600 044 along with her husband and minor son Shyam till then. The petitioner, her son and the mother of the petitioner's husband by name Parameswari are Class-I Legal Heirs of the petitioner's husband as per Section 8 of the Hindu Succession Act. However the second respondent included the name of the third respondent, who is the father of the petitioner's husband as legal heir.



3. The contention of the petitioner is that the said mistake has crept in by not conducting proper enquiry and not giving an opportunity of personal hearing to the petitioner and the same is in violation of the Government Order in G.O.(Rt.) No.2906, Revenue dated 4.11.1981, which was communicated to all the Tahsildars through letter (Rt.) NO.1534 dated 28.11.1991 by the Secretary to Government, Revenue Department.


4. According to the petitioner, the said Government Order should also be borne in mind by the Officer, who issues the Legal Heir Certificate, wherein one of the guidelines is that the legal heir certificate should be issued after arriving at a decision as to who are the legal heirs of the deceased without giving any room for suspicion. As per the Government Order, after receiving the report of the Revenue Inspector, the Tahsildar shall scrutinize the same and issues certificate.



5. The learned counsel for the petitioner submitted that when class -I legal heir is available, including the name of third respondent, who is a class-II legal heir in the Legal Heir Certificate is not proper.



6. The learned counsel appearing for the third respondent submitted that the third respondent being the father of the petitioner's husband, there is no illegality in including his name in the Legal Heir Certificate.


7. The Government has already issued guidelines to be followed while considering the issuance of Legal Heir Certificate in the above Government order dated 4.11.1981 and Government letter dated 28.11.1991, which clearly states about the procedures to be followed. The said letter reads as follows:

" ISSUANCE OF LEGAL HEIRSHIP CERTIFICATE/PROCEDURE

Government of Tamilnadu Fort St.George
Revenue Department Chennai-9

Letter (Rt) No.1534, Dt.28.11.1991.

From To
Thiru A.Seetharam Das, I.A.S., All the District
Special Commissioner and Collectors
Secretary to Government.

Sub: Certificates/Tahsildars/Issuance of Legal Heirship certificate/some guidelines stipulated-reg.

Ref: 1.G.O.(Rt)N.2906,Revenue Dt.4.11.81.
2. Letter of the Accountant General in P.V5.1K 353.
791 748.82/83.957 dated 3.1.83.
3. Letter of the Special Commissioner and Revenue Administrative Commissioner in Q.55466.85/15 dated 8.3.85.
4. Letter of the Special Commissioner and Revenue Administrative Commissioner in Na.Ka.32669.89 (Q.2), dated 20.6.90.
***
As mentioned in the G.O.1st cited under reference, on the basis of the suggestion given by the Accountant General, for stipulating some guidelines, with regard to the issue of legal heirship certificates by the Tahsildars, it was scrutinized by discussing with the Special Commissioner and the Commissioner of Revenue Administration.
2. The Commissioner of Revenue Administration, besides giving suggestions about the guidelines and procedures with regard to the issue of legal heirship certificates by the Tahsildars, has mentioned a format for issuing the legal heirship certificate. The Government accept the suggestions and the format given by the Special Commissioner and the Commissioner of Revenue Administration and accord the approval for implementing them. They have been enclosed with this letter. I request you to adhere to them without fail.
3. It is known that in the legal heirship Certificates issued by some Tahsildars, the following sentences are written "valid for six months only" and "not valid in any Court of law" as conditions. The legal heirship certificates issued by the Tahsildars cannot be considered as equivalent to the Direct legal heirship Certificates issued by the Courts under the Indian Succession Act, 1925. Further, there is no possibility for imposing conditions. Therefore, I request you not to impose any of the conditions, as mentioned above, while issuing the legal heirship certificate.
4. I request, that, based on the abovesaid orders, necessary instructions shall be given to the Officers concerned.
5. I request that the receipt of this letter may kindly be acknowledged, at once.
Yours faithfully Sd/- K.V.Subramanian
Special Commissioner and Secretary to Government.

ANNEXURE

GUIDELINES

1.As per the present procedure the Tahsildar has to issue the legal heirship certificate to the direct heirs.
2. The Tahsildar should avoid issuing legal heirship certificate in respect of the following items mentioned below, apart from the direct heirs, and the applicants should be instructed to get the certificates through the Civil Courts.
a. If there are more than one wife/husband for the deceased, and even if they have children, and if it is evident that there is a partition dispute among them.
b. When there is a condition to issue heir certificate for the person, who has left the family for seven years by deeming that person to be dead.
c. If a person is residing in other Districts, and does not have the residence within the limits of the taluk and if he is not in possession of a house or property, and does not attend the enquiry to give his statement to the Tahsildar.
d. If the deceased does not have children and brings up other children.
3. The person requesting for the legal heirship certificate for the direct heirs, should annexe the death certificate of the deceased person, affix the stamp and send an application to the Tahsildar concerned. The applications received accordingly shall be sent to the Revenue Inspector concerned for conducting proper enquiry.
4. On receiving the application from the Tahsildar concerned, the Revenue Inspector and the Village Administrative Officer shall go to the residential address of the petitioner concerned and first conduct enquiry with the petitioner and all the members of his family, his relatives, neighbours and local people and obtain their statements. The ration card, its properties belonging to the deceased, the will, wedding invitations and other documents left behind by the deceased shall be properly scrutinized and the reports regarding the persons who are the legal heirs of the deceased and their details shall be consolidated and sent to the Tahsildar.
5. As soon as the report of the Revenue Inspector is received, the Tahsildar should scrutinize it properly. After scrutiny, the legal heirs of the deceased person, should be confirmed with certainty. In case of suspicion, the Tahsildar can ask the petitioner concerned or his family members, relatives or the local people belonging to that place, or ask and get some other documents and arrive at a decision.
6. The legal heir certificate should be issued only after arriving at a decision as to who are the legal heirs of the deceased without giving any room for suspicion."





8. Since such procedures are not followed, the impugned order is set aside. The matter is remitted to the second respondent to conduct enquiry and pass fresh orders after issuing notice to the petitioner and third respondent and by considering the guidelines issued by the Government which are referred to in the letter dated 28.11.1991 within a period of eight weeks from the date of receipt of a copy of this order.




9. The writ petition is disposed of accordingly. Consequently, the connected MP is closed. No costs.




21.08.2014 Index: Yes/No Internet: Yes/No Tr/ To
1. The Revenue Divisional Officer Tambaram Kanchipuram District.
2. The Tahsildar Tambaram Kanchipuram District.
N. PAUL VASANTHAKUMAR,J.
Tr W.P.No.13304 of 2013 21.08.2014





https://indiankanoon.org/doc/86183688/
T. Kalaiselvan, Advocate (Expert) 15 May 2016
I very sincerely and proudly appreciate the efforts taken by expert and most learned friend Mr. Kumar Doab's efforts to explain the subject in a very elaborate way by reproducing the settled laws on the subjects as citations here. Also congratulate LCI to have such great people on its platform for rendering best services to the needy and all.
Thank you Mr. Kumar.
Kumar Doab (Expert) 15 May 2016
It is pleasure to have good hearted companion and fellow expert like Mr. T.Kalaiselvan, around.


Experts like you make moderation in threads enjoyable, worth participating, enriching.


The experience due to good fellow experts and companions, at any forum, be it LCI or any other, becomes fulfilling.
Kudos, to such good companions, and experts.

I am humbled and thank everyone from depths of my heart.

Lord almighty has been very kind to us.

I wish and pray for good health, peace, prosperity for every companion and Expert.
H.M.Patnaik (Expert) 16 May 2016
Many many thanx Mr. Kumar for explaining the issues involved by citing the provisions as well as settled law. Great effort.
Kumar Doab (Expert) 16 May 2016
Thanks.
You are welcome.


Moderation is beneficial for everyone.
P.ESAKKIMUTHU (Querist) 17 May 2016
All the discussion cited are dealing with legal heirs of the deceased. The alleged dependants viz namely son and daughter of deceased brother of deceased woman can be II class legal heir of the deceased women as confirmed by the Tahsildarbut whether they are falling under the definition of dependants as stated in sub sec iii of sec 2d of EMPLOYEES COMPENSATION ACT.The judgements cited deal with legal heirs of deceased man only and not of the dependants.Legal heirs and dependants under EC Act are different.Expert : Sri H.M.Patnaik says the II class legal heirs are dependants under EC Act. The dependants are defined explicitly in EC Act vide Sec 2( d) (iii). Kindly clarify in the given circumstances whether son and daughter of deceased brother of deceased woman can be considered as "DEPENDANTS" of the deceased women
Kumar Doab (Expert) 17 May 2016
Expert Mr. T. Kalaiselvan has already reproduced from said section from the:
THE WORKMEN’S COMPENSATION ACT, 1923


The same is again reproduced below

2. Definitions.—
5
[(d)“dependant” means any of the following relatives of deceased
workman, namely:—



(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 widowed mother,
(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter
3
[legitimate or illegitimate or adopted] 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;]


file:///C:/Users/Login/Desktop/Workmen_Compensation_Act.pdf



I am afraid that 'son and daughter of deceased brother of deceased woman ' is not listed in the said section.


UNTIL OR UNLESS THE 'SON OR DAUGHTER OF DECEASED BROTHER' IS ADOPTED BY THE DECEASED WOMAN (WORKMAN).



The valuable advise of learned experts is sought.



It is understood that the author is wanting to have second opinion.


I am sending a PM to seniors specializing in labor-service matters to help the author and their advise shall benefit everyone and all readers of this post.



Devajyoti Barman (Expert) 18 May 2016
The query is aptly replied by Mr Doab leaving no room for addition form my end.
P. Venu (Expert) 18 May 2016
A good discussion and lot to learn.

However, the question is: Is the term 'dependent' synonymous with 'legal heir'. In my considered opinion, the terms have different connotations applied in different contexts.

Perhaps, the basic distinction is that the compensation payable to the dependents of a deceased employee is not the property or estate of the said employee and the dependents, by receiving such compensation, are not inheriting the estate of the said deceased employee.
Kumar Doab (Expert) 18 May 2016
Certainly it is a good discussion and moderation by experts has made it enriching.



The persons/relations mentioned by author ('son and daughter of deceased brother of deceased woman ') are not listed amongst 'Dependents'.



The question arises:



1.If there is no dependent; than does the compensation under the Act becomes heritable?


Or is not to be paid at all, since it is not heritable and none of the 'dependent' is available!




2. Was there nobody available from the list of 'Dependents' as mentioned in

THE WORKMEN’S COMPENSATION ACT, 1923

2. Definitions.—
(d)(iii)?



at the time of death?


Author has to confirm on this point.




3. If anyone from this list was available but has died, before the payment of the claim?



In such case it is crystal clear that: if anyone from this list was available but has died, before the payment of the claim, then the claim amount would devolve on the heirs of the dependent and not on the heirs of the deceased workman, whether there is opposition or not!



If there was a brother at the time of death of woman, and that brother was minor at the time of death of woman 'Workman', then he, if alive, is eligible.




If there was brother that was minor at the time of death of woman 'Workman' but has died before the payment of the claim amount, then his sons/daughters, if alive are eligible.......................being legal heir of the person in list of 'Dependent'!




If this is the situation then as per query of the author 'son and daughter of deceased brother of deceased woman ' being legal heir of the person in the list of dependents, will get payment of claim amount.




4. The question at 1. reappears before us i.e. If there is no dependent; than does the compensation under the Act becomes heritable?"





Kumar Doab (Expert) 18 May 2016
The author may also confirm if the deceased woman (Workman) was covered under ESIC?


In addition to the confirmation asked by me in last post in this thread.


This is an interesting thread and author's participation is required.
P.ESAKKIMUTHU (Querist) 19 May 2016
The ESI Act is not applicable as the working place is not notified area under ESI Act.Reg.clarifications asked earlier I will feed back shortly
Isaac Gabriel (Expert) 19 May 2016
The quasi judicial authorities seldom recognise the judicial dictum, rather shirk resposibilites to direct the parties to approach the judiciary for IInd class certificates. In this case Kudos to the Tahsildar who has ventured to the call and acted upon in the right perspective.If such kind of understanding is forthcoming from the Executive authorities, the piling of such cases at courts will be minimised.Expert Doeb has taken pains to enthuse this feeling among the bureaucrats, besides exposing the right position of Law.LCI community is indebted to Saheb for enlightening us.
Kumar Doab (Expert) 19 May 2016
@ Author,

You have posted that ESI Act is not applicable. IN other words ESI Act is not operational in case of deceased woman.


Had ESI Act been operational it would have prevailed over Employee Compensation Act and NO claim under Employee Compensation Act, might have been valid.




REPORTABLE:

IN THE SUPREME COURT OF INDIA:

CIVIL APPELLATE JURISDICTION:

CIVIL APPEAL NO.8155 OF 2014:

Dhropadabai and Others Appellant(s) Versus M/s. Technocraft Toolings Respondent(s)

http://supremecourtofindia.nic.in/FileServer/2015-03-25_1427268447.pdf


P.ESAKKIMUTHU (Querist) 19 May 2016
This is to further enlighten the experts on this subject. At the time of death of the women there is no dependant as stated in sec 2(d)(iii) of EC Act was living. No payment of any nature was made to the legal heirs/alleged dependants on the death of women died in accident while on duty.Hence the claim under EC Act is filed before the Commissioner under EC Act by the sons/daughters of deceased brother of deceased women.This claim was opposed by the Respondent management on the ground that no dependants are there to the deceased woman.Now the depandant issue is taken as preliminary issue by the Commissioner of Employees Compensation. The Respondent management countered that the sons/daughters of deceased brother of deceased women are not dependant under Sec 2(d)(iii).Any court of law has dealt with sec 2(d)(111) of EC Act on the subject matter
Kumar Doab (Expert) 19 May 2016
There is still some hope.

We are exerting to help.


Have you arranged the support of a very able counsel specializing in labor-service matters?


It may be required to argue and counter the contentions of employer.


Can you somehow post the application and reply of employer before commissioner.
Kumar Doab (Expert) 19 May 2016
The matter is lingering in which state?
P. Venu (Expert) 19 May 2016
The term 'dependent', as it is understood in the common parlance, is one who depends on another person for his/her living.

The deciding factor is dependency, but the term could be enlarged by means of inclusive definition as provided by the Law.

In my considered opinion, the definition, as provided under the Employees Compensation Act itself suggests answer to the query:
2[(d) “dependant” means any of the following relatives of deceased workman, namely:—

(i) a widow, a minor [legitimate or adopted] son, an unmarried [legitimate or adopted] 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 and who is 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 widowed mother,

(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter [legitimate or illegitimate or adopted] 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;]

[Explanation.—For the purposes of sub-clause (ii) and items (f) and (g) of sub-clause (iii) references to a son, daughter or child include an adopted son, daughter or child respectively.]

The definition presumes the dependency of those in sub-clause (i) and (ii) where as those in sub-clause (iii) leaves it to be a question of fact.

In view of the specific provisions, the brother's children could be considered as dependents only if they were adopted and they are minor or otherwise suffers from any disability.

As already stated grant of compensation to the dependents of a deceased employee is not an incident of inheritance to the estate of the deceased, and hence considerations as to legal heir are irrelevant.
Kumar Doab (Expert) 19 May 2016
Why I am pressing the need of a very able counsel is that not only the Act but the Statement of Objects and Reasons of the Bill, CPC, precedences etc may have to be cited.




Kumar Doab (Expert) 19 May 2016
You may also clarify if any of the dependents existed on the day/date of death...........



"From a perusal of the above Objects and Reasons it would be evident that the Act has been promulgated for the benefit of the workmen and a liability has been fastened on the employer. This liability has to be with reference to the date when the amount has become due. If this interpretation is taken that on the death of dependant the liability of the employer ceases, it would be contrary to the purpose for which the Act has been promulgated"

T. Kalaiselvan, Advocate (Expert) 19 May 2016
Appreciable efforts by ll the experts who have contributed to this query.
Lets hope some relief is finally given to the needy if they deserve and the law supports their claim, though in my opinion, the dependent issue cannot be convincingly presented before the court or the competent authority supporting the claim in this issue under the provisions of the EC act.
Lets hope for the best.
Kumar Doab (Expert) 19 May 2016
Expert Mr. P. Venu has also stressed that:


"The term 'dependent', as it is understood in the common parlance, is one who depends on another person for his/her living. "



In ‘Employee’s Compensation Act’ all legal heirs/legal representatives are not specified to be dependents.




""Statement of Objects and Reasons.-The following Statement of Objects and Reasons was made at the time of moving the bill which resulted in the passing of the Act in its original form -

The general principles of workmen's compensation command almost universal acceptance and India is now nearly alone amongst civilized countries being without legislative measure embodying these principles.


The Bill contains two distinct proposals. In Chapter IT, modifications are made in the ordinary civil law affecting the liability of employers for damages in respect of injuries sustained by their workmen; these clauses will operate only in actions before the ordinary civil courts. The main part of the Bill makes provisions for wokmen's compensation and sets up special machinery to deal with claims falling under this category."

Kumar Doab (Expert) 19 May 2016
The decided cases from English law and the Indian law have been pursued;




>>> Kerala High Court
Krishnakumar.G. vs Union Of India Represented By on 10 June, 2011

https://indiankanoon.org/doc/136302582/


(i) Is the right under S.124A of the Railways Act one that is personal to the one on whom the right vests and consequently not heritable?

(ii) Cannot the sole legal heir of a decree holder step into his shoes after his death and claim recovery of the amount that has fallen due under Section 124A and which remains unpaid?





It may be apposite in this context to note that the language of Section 124 and 124A impose only a liability on the railways to pay compensation. They do not specifically say who all will be entitled to the compensation…………………………. 14. A survey of these provisions unmistakably reveals that the claim for compensation can be staked, in the event of death of a passenger only by a dependent and not a mere legal heir/legal representative of such passenger.
There can be no semblance of doubt on that aspect.




42. On this aspect, on the right of a legal heir to claim the amount due to his deceased predecessor under a decree, we think it apposite to refer to two precedents. In Commissioner for Workmen's Compensation v. P.V. Mohanan (1988 II L.L.J.177), a Division Bench of this Court was called upon to consider an identical question under the provisions of the Workmen's Compensation Act, which expressly declares the right of a dependant to be not alienable or attachable. The question arose whether the rights of a dependant/claimant can pass on to his legal heirs on his death. Notwithstanding the very strict provisions in the Workmen's Compensation Act, the question referred was ultimately answered by the Division Bench in the following words:

"When the compensation amount is
deposited with the Commissioner for
Workmen"s Compensation, it becomes the
property of the sole dependant of the
deceased workman, and if that sole
dependant dies prior to the allotment of that compensation, the said amount would devolve on the heirs of the dependant and not on the heirs of the deceased workman, whether there is opposition or not".




>>> Kerala High Court
Commissioner For Workmen'S ... vs P.V. Mohanan And Ors. on 15 January, 1988
https://indiankanoon.org/doc/390314/




>>> Turner v. Southern Wheel & Rim Service, Inc.
Annotate this Case
332 So. 2d 770 (1976)
Mr. and Mrs. Zacharias TURNER, Sr. v. SOUTHERN WHEEL AND RIM SERVICE, INC. and Security Insurance Company.
No. 57259.
Supreme Court of Louisiana.


The obligation of an employer to pay an injured employee workmen's compensation benefits is a legal obligation, i.e., an obligation that is imposed upon him by operation of law. The obligation is a statutory incident to the employment contract, and thus the benefits are awarded upon the theory that the statute is read into and becomes a part of the contract of employment. The employer is the debtor or obligor with respect to his obligation to pay compensation benefits, and the employee is the creditor, or obligee, since the employee is the person in whose favor the obligation is formed.
An action to enforce an obligation is the property of the obligee which on his death is transmitted with his estate to his heirs, universal legatees, or legatees under a universal title, except as otherwise provided by law.
http://law.justia.com/cases/louisiana/supreme-court/1976/332-so-2d-770-1.html




>>> Rajasthan High Court
Gopal Synthetics vs Workmen'S Compensation ... on 17 December, 1993

https://indiankanoon.org/doc/31277/

“right existing on the date of death / accident of the workman is the only criterion for claiming the compensation “

“From a perusal of the above Objects and Reasons it would be evident that the Act has been promulgated for the benefit of the workmen and a liability has been fastened on the employer. “


"Any reference to a workman who has been injured shall, where the workman is dead, include a reference on his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable."

“The provisions of the Act are beneficial for the labourer and his family and, therefore, they have to be interpreted in the manner so as to advance the object rather than putting any obstruction in the implementation of justice.”






The experts are requested to assess the possibilities and moderate.
Kumar Doab (Expert) 19 May 2016
The latest judgment from Bombay High Court;



Legal representative of dead employee can receive compensation: HC

Vaibhav Ganjapure | Feb 2, 2016,



Nagpur: In a landmark ruling, the Nagpur bench of Bombay High Court held that legal representative of a dead employee can continue the latter's legal proceedings and even claim compensation. "It would be permissible for a legal representative of an injured employee, who himself filed proceedings for compensation but expired subsequently, to continue proceedings and receive compensation amount," a single-judge bench of Justice Atul Chandurkar ruled.





Citing ECA's Section 4A, the court clarified that compensation is payable as soon as it falls due. "In case of injuries sustained in an accident, it's obvious that the date of accident would be the one when compensation would become payable. The provisions of Section 8 deals with distribution of compensation when injury to an employee resulted in his death. Under Section 8 (4) where the amount of compensation is deposited by employer, same has to be distributed among the dependents," Justice Chandurkar said, before dismissing Royal Sundaram's appeal.
What HC said
* In case of employee's death, dependents can seek compensation
* In case of injuries, employees can claim compensation
* "Dependent" to be considered in context of compensation sought on deceased's behalf
* Date of accident would be one when compensation would become payable
* No bar under ECA for his/her legal representative to continue proceedings
* If deceased employee is survived by dependent, s/he can claim compensation
Kumar Doab (Expert) 19 May 2016
>>> While making a claim under Workmen's Compensation Act, the claimant has to prove not only the prescribed relationship but that wholly or partly, he was dependent on the earnings of the deceased workman.
Commissioner, KovilpaHi Municipal, Kovelpatti v. Tamilarasan, (1999) 83 FLR 810: (1998) 4 LLN 318: 1998 11 LL) 683 (Mad He).



>>> The parents of the deceased either wholly or in part depending upon the earnings of the deceased workman at the time of his death will be deemed as dependents even when there was no averment by them that they were dependents upon the deceased.
T.D.P. Associate, Chennai v. K. Malarkodi, (2001) II LL) 535: 2001 LLR (Sum) 1070 (Mad HC).
P.ESAKKIMUTHU (Querist) 19 May 2016
The cause of action arose in Tirunelveli District of Tamilnadu and the application was filed before the Deputy Commissioner of Labour,Tirunelveli(Who is the commissioner under EC Act).When the deceased woman died the only dependants are sons/daughters of deceased brother of deceased women. How can I attach a copy of the application and the reply counter of respondent filed in this case.The application is to order for the deposit of compensation amount.If the email of the expert is stated,the scanned copy of application and counter can be sent by email. I am conversant in the labour law field and i am conducting the case on behalf of the relatives of deceased woman. During the last hearing i filed proof affidavit by one of the alleged dependants to the effect that the applicants are alleged dependants of the deceased woman and the witness is to be crossed in the next hearing dt 22.6.16. Any citation on the question of dependant analogous to this case may be furnished
P. Venu (Expert) 19 May 2016
"When the deceased woman died the only dependants are sons/daughters of deceased brother of deceased women." What is the age of the children? Are they minors? Were they orphans and were looked after by the deceased employee?

If so, the case could be made by trying to establish that the children could be considered to "adopted", thus falling within the definition of sub-clause (i).
Kumar Doab (Expert) 20 May 2016
>>> Even an adopted son or daughter of a deceased workman can claim compensation under W.e. Act.
National Insurance Company Ltd. v. Kumari Gayatri Nanda, 2000 LLR 324 (Ori He).




>>> Compensation Commissioner should not be pedantic to ascertain the dependence of claimants on the deceased.
Damu S/o. Rama Sonawane v. Sayyed Yousuf Sayyed Talaluddin, 2000 LiC 3738: (2000) 3 CLR 187: (2000) 87 FLR 305: 2000 LLR 1153 (Born He).



>>> When adoption was not proper, adopted son will not be eligible for claiming compensation.
National Insurance Co. Ltd. v. Mst. Param Pal Singh, through his father Sh. Santokh Singh, 2007 LLR 984 (Del HC).



>>> Real brother or the son of real brother will not be 'dependent' to claim accident compensation.
National Insurance Co. Ltd. v. Mst. Param Pal Singh, through his father Sh. Santokh Singh, 2007 LLR 984 (Del HC).
Kumar Doab (Expert) 20 May 2016
Read the following carefully:



>>> 5 [(d)“dependant” means any of the following relatives of deceased workman, namely:—


" It is well-settled that the Act is a piece of social security and welfare legislation. Its dominant purpose is to protect the workman and, therefore, the provisions of the Act should not be interpreted too narrowly so as to debar the


1 {For Statement of Objects and Reasons, see Gazette of India, 1922, Pt. V, p. 313, and for Report of Joint Committee, see Gazette of India, 1923, Pt, V, p. 37. 2 Subs, by the A.O. 1950, for sub-section (2). 3 The words “except the State of Jammu and Kashmir” omitted by Act 51 of 1970, sec. 2 and Sch. (w.e.f. 1-9-1971). 4 Clause (a) omitted by Act 8 of 1959, sec, 2 (w.e.f. 1-6-1959). 5 Subs, by Act S of 1959, sec. 2, for clause (d) (w.e.f. 1-6-1959). Case Law:}


workman from compensation which the Parliament thought they ought to have. The intention of the Legislature was to make the employer an insurer of the workman responsible against the loss caused by the injuries or death, which ought to have happened, while the workman was engaged in his work; Sunita Devi v. Autar Singh, (2004) 104 FJK 1007 (Jhar)



file:///C:/Users/Login/Desktop/Workmen_Compensation_Act.pdf



>>> 4.6 DEFINITIONS UNDER WORKMEN'S COMPENSATION ACT

“Dependant: Section 2(d) gives a list of persons who come within the category of "dependant" of a workman.


In ordinary language the dependant of a person is one who lives on his earnings.
Whosoever is dependant ―at the time of death‖ will get the Compensation.


http://shodhganga.inflibnet.ac.in/bitstream/10603/28179/12/12_chapter%204.pdf
P.ESAKKIMUTHU (Querist) 21 May 2016
In response to the query of Expert Mr.Venu,it is informed that at the time of death of the women, the sons/daughters of deceased brother of deceased women are all major and married. And the question of adoption of anybody is not there.But the deceased woman was living with the sons/daughters of deceased brother of deceased women at the time of death.
P. Venu (Expert) 21 May 2016
In view of the facts clarified by the Author, the brother's children, in my considered opinion, are not dependents and hence, not entitled for compensation.
Kumar Doab (Expert) 21 May 2016
Statement of Objects and Reasons, see Gazette of India, 1922, Pt. V, p. 313, and for Report of Joint Committee, see Gazette of India, 1923, Pt. V, p.


16(3) The Workmen's Compensation Occupational Diseases (Punjab) Rules, 1964

THE WORKMEN’S COMPENSATION ACT, 1923
STATEMENT OF OBJECTS AND REASONS

"The Bill contains two distinct proposals. In Chapter II modifications are made
in the ordinary civil law affecting the liability of employers for the damages in
respect of injuries sustained by their workmen; these clauses will operate only in
actions before the ordinary civil courts. The main part of the Bill makes provisions
for workmen’s compensation and sets up special machinery to deal with claims
falling under this category.................




A consistent endeavour has been made to give as little opportunity for
disputes as possible. Throughout the Bill in the definitions adopted the scales
selected, and the exceptions permitted the great aim has been precision in order
that in as few cases as possible should the validity of a claim for compensation or
the amount of that claim be open to doubt. At the same time, on the unanimous
recommendation of the committee provision has been made for special Tribunal
to deal cheaply and expeditiously with any disputes that may arise, and generally
to assist the parties in a manner which is not possible for the ordinary civil courts."




http://hrylabour.gov.in/docs/labourActpdfdocs/Workmen_Compensation_Act.pdf

Kumar Doab (Expert) 21 May 2016
So far the possible inputs have been shared.


You may check if it is possible to cultivate, or civil court can be approached..
Kumar Doab (Expert) 21 May 2016
It has been construed that 'son and daughter of deceased brother of deceased woman ' is not listed in the said section.



We are exerting to help.




The workman and dependents, legal representatives, legal heirs are poor illiterate and should benefit from this benevolent legislation.


The sons/daughters of deceased brother were dependent on earnings for deceased workman………………………………. & should not suffer from ……………disturbing aspect of this interpretation……………………………..in a case where the bread-winner of the family dies while on duty or his/her employer.




The location is not covered under ESI so here the issue in the present case does not involve the question of duplication of compensation but it involves one compensation.



The right to claim compensation died with the death of a person?




26. Death or injury is the event, which gives rise to cause of action to the claimants.



The general law of tort or special law in Motor Vehicles Act or Workmen's Compensation Act may provide a remedy for damages.

Employment is in addition to but not in substitution of the above remedies and cannot on that account be denied to the employee.


Rajasthan High Court - Jodhpur
Gopi Ram vs Bhimsen & Ors on 3 August, 2009
SBCMA NO.891/2008- THE NEW INDIA ASSURANCE CO. LTD. V/S SMT. BIDAMI AND ORS. AND 2 OTHER CONNECT
APPEALS . :JUDGMENT DTD.3.8.2009


https://indiankanoon.org/doc/624834/





The Workmen's Compensation Act was passed in India in 1923. Prior to the enactment of this Act, workers heirs could claim compensation under Fatal Accidents Act, 1865.




Puttamma & Ors. Vs. K.L. Narayana Reddy & ANR.
[Civil Appeal No. 10918 of 2013 arising out of SLP (C) No.4639 of 2010]

https://indiankanoon.org/doc/624834/




9. (ii) Prior to the enforcement of Indian Fatal Accident Act, 1855 in England there was a statute, namely, Fatal Accident Act, 1846 certain provisions of which read as under:
(a) 'Whereas no action at law is now maintainable a person who by his wrongful act, neglect or default may have caused the death of another person, and it is often-times right and expedient that the wrongdoer in such cases should be answerable in damages for the injury so caused by him.' Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, that when so ever the death of a person shall be caused by a wrongful act, neglect and default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death shall have been caused under such circumstances as amount in law to a Felony.
(b) And be it enacted, that every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the Jury may give such Damages as they may think proportioned to the Injury for such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant......




11. Fatal Accident Act, 1855 was the first Indian legislation that provided a right to claim compensation for the death of a person caused by wrongful act of another. It was enacted in accordance with English Fatal Accidents Act, 1846. Section 1A of the Indian Fatal Accident Act, 1855reads as under:
"[1A] Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong? Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.



13. Under Section 306 of the Indian Succession Act 1925 all rights for claiming damages after the death of a person survive and legal representative could claim damages. Section 306 of the Indian Succession Act, 1925 reads as under: "306. Demands and rights of action of or against deceased survive to and against executor or administrator - All demands whatsoever all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1960 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."




.It seems that when Section 3(5) of the Workmen'sCompensation Act was enacted, the Legislature could have had in mind the ordinary Courts only as an alternative forum for entertaining a claim for damages. It will be noted in particular that Sec. 3(5) speaks of a 'suit' and as has been well settled, a suit is a 'civil proceeding instituted by the presentation of a plaint.' That was laid down by the Privy Council in Hans Raj Gupta V/s Dehra Dun Mussorie Electric Tramway Co. Ltd. , AIR 1933 PC
Kumar Doab (Expert) 26 July 2016
It is for the benefit of readers.


The following decision may set new precedence's.



'Son adopted by Wife of deceased employee, after death of Employee' is eligible for Compassionate Appointment.





IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.24521 of 2015
Date of decision:20.07.2016
Sukhwinder Kaur ...Petitioner
Versus
State of Punjab and others ...Respondents


file:///C:/Users/Login/Downloads/CWP_24521_2015_20_07_2016_FINAL_ORDER%20(1).pdf


http://phhc.gov.in/enq_caseno.php?var1=CWP&var2=24521&var3=2015


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