IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 221 of 2005 National Insurance Company Ltd. … Appellant Vs Sunder Prasad Tharu S/o Late Sri Ashu Tharu & another … Respondents Sri D.S. Patni, learned counsel for the appellant Sri B.D. Pande, leaned counsel for the respondent Hon’ble B.C. Kandpal, J. This appeal under Section 30 of the Workmen Compensation Act, 1923 filed by the appellant against the Judgment and award dated 28.03.2005 passed by the Workmen Compensation Commissioner/Assistant Labour Commissioner, Haldwani, District Nainital in W.C.C. No. 32 of 2004, Sunder Prasad Tharu Vs Gopal Singh Matiyani & another whereby the learned Commissioner awarded a sum of Rs. 2,65,644/- to the claimants along with interest @ 8% i.e. Rs. 35,420/-. 2. Brief facts of the case are that on 07.08.2003 at about 01:30 p.m., the deceased – Sri Chunnu Chaudhary @ Chunnu Tharu was working under Village Road Yojna at village Kathli, Thana Someshwar. He was working as a labour for constructing a bridge at the spot of accident along with other labours. Chunnu Tharu at the time of working started plucking the Aaroo with an iron rod and due to which he collided with the electric wire of 11000 watt going above the tree of Aaroo, due to which he died at the spot. The report of the incident was lodged by Lalit Mehra on the same day. The postmortem on the body of the deceased was conducted by Dr. R.C. Pant at Almora Hospital. At the time of the accident, the deceased was getting salary @ Rs. 3,000/- per month. 2 Therefore, the claimant filed claim petition before the Workmen Compensation Commissioner for Rs. 3,32,055/-. 3. After registering the claim petition, the notices were issued to the parties. The appellant/Insurance Company contested the claim petition and filed its written statement alleging therein that on the date of accident, the deceased was working under the supervision of Gopal Singh Matiyani. It has further pleaded that the claimant was not dependent upon the deceased. The deceased was working under the supervision of Gopal Singh Matiyani, therefore, the liability to pay compensation along with interest upon the employer, not the Insurer. 4. Sri Gopal Singh Matiyani also filed his written statement before the learned Commissioner alleging therein that the deceased was died due to electric shock. It has further alleged that on the date of accident, the deceased was insured with the National Insurance Company Ltd. under the Workmen Compensation Act, 1923, therefore, the liability of compensation lies upon the Insurance Company. 5. Thereafter, the claimant filed its written statement alleging therein that the deceased was his only brother. On the date of accident, he was under the employment of Gopal Singh Matiyani. It has further alleged that the Chunnu Chaudhary @ Chunnu Tharu was insured by the employer and comes under the category of Workmen Compensation Act, 1923. 6. On the basis of the pleadings of the parties, the learned Commissioner came to the conclusion that on the date of accident, the Chunnu Chaudhary was died during working 3 hours, therefore, the claimant entitled to get compensation under the provision of Workmen Compensation Act, 1923. The learned Workmen Commissioner awarded a sum of Rs. 2,65,644/- as compensation and Rs. 35,400/- as interest @ 8% in favour of the claimant vide judgment and award dated 28.03.2005. 7. Feeling aggrieved by the aforesaid judgment and order, the Insurance Company filed this appeal before this Court. 8. Heard Sri T.A. Khan, learned counsel for the appellant/Insurance Company, Sri B.D. Pande, learned counsel for the respondent and perused the record. 9. Learned counsel for the appellant/Insurance Company has pressed this appeal only on the ground that the learned Workmen Commissioner while deciding the claim petition did not consider the definition of the “dependent” as provided under Section 2(d) of the Workmen Compensation Act which shows that the major brother do not fall in the category of dependents of the deceased. 10. Sri B.D. Pande, learned counsel for the claimant on the other hand has submitted that the impugned judgment passed by the Workmen Compensation Commissioner does not suffer with any illegality. 11. After having considered the arguments submitted by learned counsel for the parties and perusing the material available on record, it appears to me that the short controversy in this case is as to whether the claimant not being minor brother of the deceased is dependent to the 4 deceased or not and as to whether he is entitled to receive any compensation or not? 12. For resolving this controversy, it would be relevant to look into the provision of Section 2(1)(d) of the Workmen Compensation Act, which reads as under:- “2 Definations (1) …. (d) “dependant” means any of the following relatives of a deceased workman, namely:- a window, a minor [legitimate or adopted] son, an unmarried [legitimate or adopted] daughter, or a windowed mother, and 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 inform; if wholly or in part dependent on the earnings of the workman at the time of his death – a widower a parent other than a widowed mother. A minor illegitimate son, an unmarried illegitimate daughter or a daughter [legitimate of illegitimate or adopted] if married and a minor or if widowed and a minor. A minor brother or an unmarried sister or a widowed sister if a minor. A widowed daughter-in-law. A minor child of a pre-deceased son. A minor child of a pre-deceased daughter where no parent of the child is alive, or 5 A parental grandparent if no parent of the workman is alive.” 13. Bare perusal of the aforesaid provision, it is quite clear that the claimant cannot be said to be the dependent of the deceased, in view of the reasons that the claimant on the date of the deceased was minor. It is clear from the perusal of the claim petition that the claimant is the elder brother of the deceased. Paragraph 1 of the claim petition clear this point, which reads as under:- “;g fd izkFkhZ e~rd deZdkj pwuw pkS/kjh mQZ pwuw Fkk: dk ,d ek= okfjl ,oa vkfJr gS] e`rd pwuw vfookfgr Fkk vkSj ekrk rFkk firk dk iwoZ esa LoxZokl gks x;k Fkk] izkFkhZ e`rd dk lxk cM+k HkkbZ gSA” 14. In view of the above fact, it is quite clear that the claimant was major at the time of the accident. The provision quoted above shows that only the minor brother have right to claim the compensation in view of the aforesaid provision but in the instant case on the date of death of the deceased – Chunnu Chaudhary, the claimant was elder brother. Therefore, the claimant does not fall in the category of the dependent as has been envisaged in the aforesaid provision of the Workmen Compensation Act. This Court in First Appeal From Order No. 01 of 2000 decided on 14.03.2008 allowed the appeal filed by the Oriental Insurance Company Ltd. on the same point of view. 15. It has been brought to my notice that the entire money has been deposited by the appellant/National Insurance Company Ltd. and the claimant has withdrawn that money. It is open for the Insurance Company/appellant to initiate the proceedings for recovery of the money awarded by 6 the Workmen Compensation Commissioner against the claimants. 16. With the aforesaid observation, the appeal is allowed and the impugned judgment and order dated 28.03.2005 passed by the Workmen Compensation Commissioner/Assistant Labour Commissioner, Haldwani, District Nainital is set aside and the claim petition is accordingly dismissed. (B.C. Kandpal, J.) 03.04.2008 ASWAL