:1: IN THE HIGH COURT OF BOMBAY AT GOA APPEAL UNDER WORKMEN'S COMPENSATION ACT NO. 1 OF 2004 1. M/s Kamat and Co. Handling Agents, Old Accounts Office, Room No. 5, Mormugao Harbour, Mormugao, Goa. 403803. …. Appellants V e r s u s 1. Mrs. Shanta Shivmurti Kanoji, C/o Keshav Patil, House No.82, near Micro Station Jetty, Mormugao Harbour 2. Mormugao Handling Agents Association, Vasco-da-Gama, Goa. …. Respondents Mr. V. R. Tamba, Advocate for the appellants. Mr. T. Pereira, Advocate for respondent no.1. Mr. D. B. Ambekar, Advocate for respondent no.2. CORAM : F. M. REIS, J DATE : 12 th SEPTEMBER, 2011 . ORAL JUDGMENT The above appeal challenges the order passed by the learned Commissioner for Workmen's Compensation, :2: Government of Goa, dated 09.03.2004 whereby the claim put forward by respondent no.1 was allowed and the appellants were directed to pay the compensation to the extent of Rs.1,84,170/- to respondent no.1 within 30 days from the date of the said order. Being aggrieved by the said order, the appellants have preferred the present appeal. 2. I have heard Shri V. R. Tamba, learned Counsel appearing for the appellants, Shri T. Pereira, learned Counsel appearing for respondent no.1 and Shri D. Ambekar, learned Counsel appearing for respondent no.2. 3. Shri V. R. Tamba, the learned Counsel appearing for the appellants has assailed the impugned order and pointed out that this Court whilst admitting the above appeal has essentially admitted the appeal on three substantial questions of law which are as under : 1. Whether on true and correct interpretation of Workmen's Compensation Act, 1923 r/w the Rules and Regulations for the Mormugao Shore Handling Agents' Workers Pool, as applicable to the facts of the present case, can it be gathered that opposite party no.2 was the actual employer of the :3: deceased husband of the claimant or was it the opposite party no.1 ? 2. Whether on true and correct interpretation of the Workmen's Compensation Act can”a employer” assuming without admitting that he is liable to pay, be held liable to pay compensation where a workman being aware of chronic heart disease volunteers for service and does not inform the employer about his chronic heart disease ? 3. Whether on pleadings, documents, and material brought on record can it be inferred that the claimant is widow of the deceased within the meaning of S.2(d)(i) of the Workmen's Compensation Act so as to enable her to draw the compensation in absence of Marriage Certificate evidencing the marriage between the claimant and the deceased; or the word “widow” under S.2(d)(i) of the Workmen's Compensation Act includes only a “legally wedded wife”? 4. The learned Counsel has elaborated his submission in support of the said substantial questions of law and it is his contention that the deceased workman had :4: expired on account of chronic heart disease which ailment he was suffering much before his employment and the same was not disclosed to his employer at any time at the time of his employment. The learned Counsel further pointed out that the appellants were not aware about the said ailment and as such the question of holding that the deceased expired in the course of his employment would not arise. The learned Counsel however did not dispute that the deceased was engaged as a loader worker and that he had expired at the time when he was in employment and was engaged by respondent no.2 – gang workers. The learned Counsel further took me through the impugned order and pointed out that the learned Commissioner has not at all addressed itself to the legal question in controversy and as such has come to an erroneous conclusion that the accident occurred during the course of employment of the deceased. The learned Counsel further pointed out that according to the appellants, respondent no.1 was not entitled to put forward the claim of the compensation, as according to him, she was not the widow of the deceased. The learned Counsel further submitted that this aspect has not been adequately considered by the learned Commissioner whilst passing the impugned order. In support of his submission, the learned :5: Counsel relied upon the judgments of this Court reported in 1984(2) Bom. C. R. 228 in the case of J. F. Pereira through her Constituted Attorneys Miss Ivy Pereira and Charles Pereira V/s Messrs Eastern Watch Company Ltd., AIR 1971 Bombay 200 (V 58 C 35) in the case of Mrs. Kamlabai Chintaman V/s Divisional Superintendent, Central Railway, Nagpur, and judgment of the Apex Court reported in 2006(5) SCC 513 in the case of Jyothi Ademma V/s Plant Engineer, Nellore and another. He has also relied upon a judgment of the Kerala High Court reported in 1998 LAB IC 3355 in the case of Director General, Directorate General of Border Roads, New Delhi and others V/s P. Kumaran and another. The learned Counsel as such pointed out that the said contentions have not at all been dealt with by the learned Commissioner and in case this Court accepts the said contention, the matter may be remanded to the learned Commissioner to decide afresh in accordance with law. 5. On the other hand, Shri T. Pereira, learned Counsel appearing for respondent no.1 has supported the impugned order. The learned Counsel has further pointed out that the contention of the appellants that they were not aware :6: about the fact that the deceased was suffering from a heart ailment cannot be accepted as according to him, there were periodical examinations of the workers engaged by the appellants from time to time which itself discloses the fact that the deceased was suffering from such ailment. The learned Counsel further submitted that this itself would infer that the employer was aware about such ailment suffered by the deceased at the relevant time. The learned Counsel further submitted that it is an admitted fact that the deceased was a loader worker engaged by the appellants and considering the nature of the work even assuming that he was suffering from heart ailment, the nature of the work performed by the deceased had aggravated his ailment which resulted in his death and as such it is well settled that in such cases the respondent no.1 would be entitled for the compensation. The learned Counsel further submitted that on the basis of the pleadings of the appellants, there is nothing on record to show that the appellants had claimed ignorance about the fact that the deceased was suffering from such ailment. The learned Counsel further took me through the written statement as well as the impugned order and pointed out that the learned Commissioner has rightly appreciated the evidence on record on the basis of the material before him :7: and as such the interference by this Court would not arise. Shri T. Pereira, the learned Counsel appearing for respondent no.1 however has fairly conceded that submission advanced before the learned Commissioner on the basis of the said judgments relied by the learned Counsel for the appellants have not been specifically dealt with by the learned Commissioner whilst passing the impugned order. As such, submitted that the appeal though otherwise deserves to be rejected but however in case the matter is remanded, an opportunity may be given to the parties to lead further evidence. 6. Shri D. B. Ambekar, the learned Counsel appearing for respondent no.2 has pointed out that according to respondent no.2, the said establishment has been dissolved in the year 1992 and according to him, respondent no.2 is not a necessary party to the above appeal. The learned Counsel further pointed out that the appeal as far as respondent no.2 is concerned deserves to be rejected. 7. Having heard the learned Counsel for the parties and on perusal of records, I find justification in the contention of the learned Counsel for the appellants that the learned :8: Commissioner whilst passing the impugned order has not dealt with the said point raised by the appellants in support of their contentions that the appellants are not liable to pay the compensation to respondent no.1. 8. I have perused the impugned order, and I find that the said contentions have not been adequately considered by the learned Commissioner whilst passing the impugned order. The learned Commissioner will have to consider whether the death which has occurred can be considered to be in the course of the employment and whether the respondent no.1 is entitled to claim the compensation which is otherwise disputed by the appellants on different ground. The learned Commissioner would have to decide the following questions afresh, in accordance with law. 1. Whether the appellants can be considered as an employer within the meaning of the provisions of Workmen's Compensation Act, 1923 read with Rules and Regulations of the Mormugao Handling Agents Workers Pool ? 2. Whether the employer was aware about the heart ailment of the deceased at the time of his employment ? :9: 3. Whether the respondent no.1 is entitled to claim such compensation in accordance with law. 9. The learned Commissioner will have to decide the above questions afresh after giving both the parties an opportunity to lead further evidence and hearing them in accordance with law. 10. Dealing with the contention of Shri D. Ambekar, the learned Counsel appearing for respondent no.2, liberty is given to the said respondent to file an appropriate application before the Commissioner to get his contention adjudicated in accordance with law. 11. In view of the above, I pass the following : O R D E R (i) The appeal is partly allowed. (ii)The impugned order dated 09.03.2004 is quashed and set aside. (iii) The Commissioner is directed to decide the claim put forward by respondent no.1 in the light of the observations made herein in accordance with law on or before 31st March, 2012. :10: (iv) The parties are directed to appear before the learned Commissioner on 24.11.2011 at 3.00 p.m. (v) The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J at*