1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.279 OF 1994. 1. Kalu S/o Dhondu Patil Age : 66 years, Occ : Nil, 2. Shantabai W/o Kalu Patil Age : 60 years, Occ : Nil, Both R/o Taloda Digar, Tq. Chalisgaon, Dist. Jalgaon. APPELLANTS VERSUS 1. Jijabai W/o Bhaskar Patil, 35 years, Occ : Agri., & Labour, R/o Upkhed, Tq. Chalisgoan, Dist. Jalgaon. 2. Ramchandra S/o Kalu Patil Age : 35 years, Occ : Agri., & Labour, R/o Talode Digar, Tq. Chalisgaon, Dist. Jalgaon. 3. Balasaheb S/o Kalu Patil, Age : 28 years, Occ : Agri., & Labour, R/o Talode Digar, Tq. Chalisgaon, Dist. Jalgaon. 4. Asia Foundations and Constructions Ltd., Calcutta-71. RESPONDENTS ------------------------------------------------------------------------------------------------------ Mr. Arvind R. Kawade holding for P. R. Patil, the Advocate for the appellants. Appeal Against the Respondent No.4 dismissed as per the Additional Registrar's order dated 27.04.1993 in C.A. No.941/1992. ------------------------------------------------------------------------------------------------------ 2 (CORAM : R.K. DESHPANDE, J.) DATE : 31th August, 2009. ----------------------------------------------- ORAL JUDGMENT : This Appeal challenges the judgment and award dated 21.03.1991 passed by the learned Commissioner for Workmen's Compensation and Labour Court, Jalgaon on the Application under section 8 of the Workmen's Compensation Act, 1923 which was registered as Application W.C.A. No.36/1989. By this Judgment and Award the whole amount of compensation which was of Rs.30,000/- was directed to be paid to the Respondent No.1 Jijabai widow of deceased Bhaskar Patil. 2. The appellants are the father and mother of deceased Bhaskar whereas the Respondent No.1 is widow of Bhaskar and the Respondent Nos.2 and 3 are the real brothers of deceased Bhaskar. The Respondent No.4 is Asia Foundations and Constructions Ltd., Calcutta with whom the deceased Bhaskar was working as Labourer. 3. The appellants and Respondent Nos.1 to 3 jointly filed Application W.C.A. No.36/1989 under section 8 of the Workmen's Compensation Act, 1923 for distribution of the amount of compensation deposited in respect of the death of deceased workmen Bhaskar Patil. Bhaskar died on 09.04.1984 in an accident arising out of and during the 3 course of his employment with the Respondent No.4 Company. This Company accepted the liability and deposited an amount of Rs.33,000/- towards compensation payable to the dependents of the deceased. Hence joint application was filed for claiming apportionment of compensation. 4. The learned Commissioner, Workmen's Compensation by judgment and order dated 21st March, 1991 directed that, the whole amount of compensation be allotted to the share of the Respondent No.1 Jijabai wife of deceased Bhaskar. The learned Commissioner recorded the findings that, the Respondent Nos.2 and 3 herein who are the real brothers of the deceased were major on the date of death of deceased Bhaskar and as they were not dependents and not covered by section 2(d) of the Workmen's Compensation Act. Similarly, the Commissioner also recorded the finding that, the appellants who were original applicant nos.2 and 3 are also not dependents of the deceased, as they have their independent source of income through agricultural land which was sufficient for them. The Trial Court relied upon Exhibit-35 i.e. 7/12 extract in respect of the land which was owned by the appellant no.1 and also relied upon oral evidence of the appellant no.1-Kalu, appellant no.2-Shantabai and Jijabai- orig.applicant no.1 i.e. Respondent No.1 herein. 5. The aforesaid findings recorded by the Commissioner are 4 challenged in this Appeal under section 30 of the Workmen's Compensation Act, 1923. Although no substantial question of law as required by sub-section (1) of section 30 has been framed by this Court at the time of admitting this Appeal, the learned Counsel for the parties have addressed this Court on the question of dependency of the appellants on the deceased. The learned Counsel for the appellants relied upon the definition of dependent as given in section 2(d) and more particularly clause (b) therein. The learned Counsel contended that, the appellants are the parents of the deceased who were wholly or in part dependent on the earnings of the deceased at the time of his death. The learned Counsel contended that, this aspect has not been considered by the learned Commissioner. 6. The Counsel appearing for the Respondent No.1 on the contrary contended that, there is absolutely no evidence brought on record by the appellants to establish that they were wholly or in part dependent upon the deceased Bhaskar so as to claim apportionment of compensation. The learned Counsel relied upon the decision of this Court reported in 1972 Mh. L. J. 261 Sk. Jumman Sk. Amer V/s Sahajahanbi Suleman. 7. With the assistance of the learned Counsels appearing for the respective parties, I have gone through the entire oral evidence led by the 5 appellants and I have also gone through the 7/12 extract which is at Exhibit-35. On the basis of this oral as well as documentary evidence, the learned Commissioner has recorded the findings that, the appellants were not dependent on the income of the deceased and they have not placed on record any material to substantiate their claim. The section 2(d) which defines the term `dependant' is reproduced below :- Section 2(d) “dependant” means any of the following relatives of a 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 dependent 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 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 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 6 child include an adopted son, daughter or child respectively); 8. The burden to prove that, the claimants were wholly or in part dependent on the earnings of the workman at the time of his death in terms of clause (iii) of sub-section (d) of section 2 reproduced above, lies upon the claimants/appellants. The appellant no.1 in his cross examination has stated that, he possesses 5 acres of land and at the time of death of Bhaskar, he was cultivating the land. He has further stated that, he was having one cow, bullock and shegoat. The learned Counsel for the appellants invited my attention to the portion of the cross examination of the appellant no.1 wherein he has stated that, Bhaskar used to send Rs. 500/- per month to the appellants. However, he further states that, he has not produced any documentary evidence about the payment sent to him by the deceased-Bhaskar. Apart from this, the evidence of appellant no.2 is at variance with the evidence of the appellant no.1. The appellant no.2 states that, deceased Bhaskar used to give Rs.1000/- or Rs.1500/- as and when he used to visit home. 9. In view of the evidence, it can not be said that the findings recorded by the learned Commissioner are not based upon any evidence or are based on the evidence which is inadmissible or that it is based upon some irrelevant material. The findings are based upon the appreciation of 7 evidence available on record. None of appellants have produced any evidence on record to show as to what extent they were dependent upon the deceased. At any rate, it is possible view taken by the learned Commissioner and no substantial question of law arises out of the same. 10. In the result the Appeal is dismissed, however there shall be no order as to cost. (R. K. DESHPANDE ) JUDGE GAS/fa279.94