^ \s/ \A IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (C) N0. ^ s ° ° - - i?i!t -. _. ^.3 IHCSlTS" s"i'??S?:! ii?5^E^ia i-3^3?i'-'.^ /2009 Appellant ^Amarsay @ Amar Singh Netam, aged about 55 years, S/o Ghasiram by Caste Gond, R/oVillage KotalBhatti, Thana Narharpur, Tahsil and Distt. Kanker (Since Died) ^roposed Appellant /Sukhchand aged about 32 years, S/o ...-\ Amarsay by Caste Gond R/o Village KotalBhatti, Thana Narharpur, Tahsil ^.--^'LA'' .-•' X^'''P/>i and Distt. Kanker ..s^ •>?1;'''', \,<^ \.'f!"" ^•^-^"'N^-'"' •;'' ^.^" y'~' ^y •.^•' Respondents 2. a. Versus M/s N.C. Nahar, Contractor, Malviya Nagar Durg Distt. Durj Executive Engineer, Pradhanmantri Gram Sadak Yajna, Head Office Kanker Distt. Kanker Branch Manager, United India Insurance Co. Ltd. Jagdalpur APPEAL UNDER SECTION 30 OF WORKMEN COMPENSATION ACT 'BLE MR. I.M. AmarsaE @ Amar Singh Netam (Since died), through proposed appeliant Sukhchand AA/s N.C. Nahar & others /Ar. Parag Kotecha, Advocate for the appel A'lr. A.D. Kuideep, Advocate for the responi '. Sudhir Agarwal, Advocate for res( No.; No.3. «h ^r; 1. Heard. 2. The (xppeilant has filed this appeal against the order dated 08.04.2009 passed by the Commissioner, Workmen's Compensation-cum-Labour Court, Jagdalpur (C6) (for brevity 'the Commissioner') in Case No.B/11/WC Act/ Fatai/2008. 3. The appellant herein is the son of deceased claimant who had fiied the claim petition before the Commissioner seeking compensation on the ground that he was dependent on his son Shishupal, who lost his life in the course of and under the employment of respondent No.l. Howe.ve.r, during the pendency of claim petition, fother of the appeilant herein died and the present appellant moved an application for substitution in piace of deceased appellant. The Commissioner dismissed the application on the ground that the appellant does not come within the definitlon of 'dependant' as defined under Section 2 (1) (d) of the Act, 1923. Seing aggrieved by said order of rejection, the appeilmt has filed this appeal. 4. Learned counsel for the appellant would argue that even if in the case of death of claimant during the pendency of claim petition, the claim petition survives and 'f- shouid be decided as if the claimant was alive as he would have entitled to get compensation had he been alive. t^ ^^L--.'.'' "•.'. '":>•..•....... . K l''<j?S2;5Ai y ff ^ >' 5. Befpre proceeding further it is necessary to peruse definition of 'dependent' as provided in Section 2 (1) (d) of the Act, 1923, which is reproduced herein below:- MJIV "."dependant" means any of the following relotives of a deceased [employee], namely- (i) a widow, a minor [legitimate or adopted] son, an unmarried [legitimate or adopted] daughter, or a widowed mother; and (ii) if whoily dependent on the earnings of the [empioyee] ot the time of his death, a son or a daughter who has attained the age of 18 yeurs and who 'ts infirm; (iii) if whoily or in pari- dependent on the earnings of the [empioyee] at the time of his death— (a) a widower, (b) a parent other than a widowed mother, (c) a minor iltegitimote son, an unmarried iilegitimate daughter or a daughter [legitimate or illegitimate or adopted] if married a"d .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 chiid of a pre-deceased daughter where no parent of the chiid isaiive, or (h) a port'ernal grandparent if no parsnt of the [employee] is aliye];" In the matter of bivisional Manager. New India Assurance Co. Ltd. vs. Sankar Tarai & others reported in 1996 ACJ 579 similar question has come up for consideration and the Court has held thus:- "4. There is substance in the plea of the insurer that major elder brother of a vuorkman is not encompassed by definition of 'dependant' as given in the Act. However, clause (d) of sub-section (1) of section 2 of the Act is crystal ciear that minor brother- or unmarried sister or a widowed sister comes within the umbrella of expression 'dependant'. There being no dispute raised that claimant No.3 Manjutata Tarai, was a minor sister of the deceased, she for the purpose of the Act is a dependant and 'is entitled to compensation...." In the matter of Malepurath Sankunni Ezhuthassan v. Thekittil eeopalankutty Nair reported in AIR 1986 SC 411 the Hon'ble Supreme Court has held that 'where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right t sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on record of the appeal in his place and stead if the appeilant dies during the pendency of the appeal. The posMon, however, is different where a suit for defamotion has resulted in a .*; -^ decree in fmour of the plaintiff because in such a case the cwse of action has merqed in the decree and the decree+at debt forms part of this estate and the appeat from the decree by the defendant becomes a question of benefit or detriment to the estate of the plain+iff-respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff. 8. In the instant case it is not in dispute thot the appellant was rsal brother of the deceased workman and father of the appellont here.in moved claim petition statinq therein that he was deoendent on his deceased son and the said applicai'ion was entertoined by The Commissioner. However, during the pendency of the claim, the original claimant i.e. father of the appeliant herein, died and therefore the appellant moved an application for substitution in piace of his deceased father on the ground that since he was dependent on his father, therefore, right to sue survives in his favour. The Commissioner vide order impugned rejected the said application on the ground that the appellant does not come under the definition of 'dependent'. 9. Considering the facts and circumstances of the case and further considering the law laid down in this regard, we are of the opinion that the Commissioner has not committed any illegality in rejecting the apptication of the appellant for substitution. However, had there been an award in favour of the father of the appeliant, the appellant herein could have claimed substitution in place of his father being the legal heir as the amount of award would haye formed part of the estate of his deceased father. Accordingly, the argument advanced by learned counsel for the appellant does not qipeal to us as right to sue does not survive to the appeilant as right to sue was personal to the fort-her of the appellant who was dependent on the deceased workman. Even otherwise, during the life time of appellant's father and pendency of the claim petition also, the appellant vuould not have qot any right of compsnsation. 10.In the result, the appeal has no substance, the same deserves to be and is hereby dismissed. No order as to costs. roshan Sd'- I.M.Quddusi Judge Sd/- G.Mtahaiuddin Judge