FA/4442/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4442 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HIRABHAI GHUSABHAI DHAPA LEGAL HEIRS OF GHUSABHAI DHAPA Versus KANUBHAI D PATEL (BUILDER & CONTRACTOR) ========================================================= Appearance : MR HARSHAL M SHAH for Appellant. MR MUKESH H RATHOD for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 11/02/2008 ORAL JUDGMENT The appellant, original claimant, being aggrieved by FA/4442/2007 2/4 JUDGMENT the judgment and order dated 03.01.07 passed by the Workmen's Compensation Commissioner, Bhavnagar in W.C. [F] Case No. 13 of 1997, has preferred the present appeal under section 30 of the Workmen's Compensation Act, 1923 [hereinafter referred to as the Act]. Mr. Harshal M Shah, learned advocate representing the appellant submitted that the distraught heir and legal representative of the workman, who sustained fatal injuries on 12.03.97, has filed the claim petition claiming compensation of Rs.1.50 lakhs with 12% interest from the opponent. It is submitted that the deceased sustained injuries during the course of employment with the respondent on 12.03.97. Learned advocate further submitted that the learned Commissioner, without considering the evidence adduced by the appellant on record of the case in its proper perspective, rejected the claim petition. He further submitted that the learned Commissioner has erred in holding that the appellant cannot be considered as a dependent within the definition of 'dependent' as provided under section 2 (d) of the Act. The learned Commissioner also erred in not considering the age of the deceased as 52 years on the date of the accident and erroneously held that he was approximately 80 years of age as per the Post Mortem Report and as the deceased was not working with the respondent-contractor, he cannot be said to be an employee within the meaning of the Act, and, therefore, the claimant is not entitled to claim compensation as set out in the claim petition. Learned advocate further submitted that on the basis of the oral deposition and documentary evidence on the record of the case, the appeal requires to be allowed and the order passed by the FA/4442/2007 3/4 JUDGMENT learned Commissioner is required to be quashed and set aside. As against the aforesaid contentions raised by the learned advocate for the appellant, Mr. Mukesh Rathod for the respondent submitted that the learned Commissioner has considered the evidence on record of the case and the oral deposition adduced by the applicant, and after considering the same, rightly came to the conclusion that the deceased was not an employee of the respondent contractor and, therefore, the appellant cannot claim compensation from the respondent. He further submitted that the deceased was aged 80 years on the date of the accident and, therefore, that fact was reflected in the Post Mortem Report submitted during the course of the proceedings and as the deceased was not in the employment of the respondent, the claim was rejected by the trial Court. He further submitted that the trial Court also considered as to whether the applicant was 'dependent' within the meaning of the Act and after considering the same, held that the claimant was not a dependent within the meaning of the definition of 'dependent' in the Act and, therefore, his claim was rightly rejected by the learned Commissioner. Having heard the rival contentions of the learned advocates appearing for both the sides and having perused the record and proceedings of the case, the appellant, in my considered view, has not made out any case for grant of relief as set out in the appeal. The learned Commissioner has, while considering the oral deposition as well as documentary evidence on record of the case, rightly held that the appellant would not fall within the FA/4442/2007 4/4 JUDGMENT definition of 'dependent' as provided in the Act and, therefore, he cannot claim compensation from the respondent. This Court is also of the considered opinion that after perusing the Post Mortem Report and the age of the deceased at the time of the unfortunate accident, the learned Commissioner has rightly held that he was approximately 80 years of age. There is nothing on the record to show that the age of the deceased was 52 years on the date of the accident. Even the appellant has not produced any evidence to show that the deceased was aged 52 years on the date of the accident. Apart from this fact, it is also observed by the learned Commissioner that the deceased was not working with the respondent and he was not a workman of the respondent and as that aspect is not established by the appellant, he cannot be awarded compensation as prayed for by him in the application. In view of the aforesaid facts and circumstances, since the appellant could not establish that the deceased was an employee of the respondent, he cannot claim compensation from the respondent. There is no reason to disbelieve the findings recorded by the learned Commissioner in his judgment which is based on the oral deposition and documentary evidence. That apart, no substantial question of law is involved in the present appeal, and, therefore also, the present appeal is not maintainable. For the foregoing reasons, the appeal, being devoid of any merit, fails and stands dismissed. No order as to costs. mathew [H.B.ANTANI, J.]