-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.138 OF 1992 APPEAL NO.138 OF 1992 APPEAL NO.138 OF 1992 1.K.M.Balan 2.Smt.Janaki Balan w/o K.M.Balan ...Appellants vs. T.A.Jacob United India Insurance Co. ...Respondents Mr.M.G.Barve h/f Mr.R.Ramanathan for the Appellants CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JANUARY 21, 2008. : JANUARY 21, 2008. : JANUARY 21, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned Advocate for the Appellants and the learned Advocate for the first Respondent. None appears for the second Respondent. The Appellants are the original claimants in a claim filed under the provisions of Workmen’s Compensation Act,1923 (hereinafter referred to as the said Act). 2. According to the case of the Appellants they are the parents of the deceased workman who was employed with the first Respondent. The deceased met with a fatal accident on 1st September 1988. According to the case of the Appellants the deceased received injuries arising out of and in the course of his employment resulting into his death. The deceased was working as a Cleaner and as a Assistant to the driver of the Tempo owned by the first Respondent. According -2- to the case of the Appellants, the age of the deceased was around 19 years and was drawing a monthly salary of Rs.750/-. The claim for compensation was filed by the Appellants before the learned Commissioner. By a Judgment and Order dated 12th July 1989 the learned Commissioner directed the Respondents herein to jointly and severally pay compensation of Rs.67,200/- to the Appellants. The Respondents were directed to pay costs to the Appellants. An application was moved by the second Respondent for setting aside the said Judgment and Order. By order dated 24th April 1990, the learned Commissioner passed an order setting aside the Judgment and Order dated 12th July 1989. A sum of Rs.67,200/- was already deposited by the second respondent. By the said order dated 24th July 1990, the learned Commissioner allowed the Appellants to withdraw half of the amount of Rs.67,200/- subject to furnishing an undertaking as indicated in the said order. Remaining half of the amount was permitted to be withdrawn on furnishing bank guarantee. 3. Thereafter, the claim application made by the Appellants was decided afresh and by impugned Judgment and Order dated 27th November 1990 the learned Commissioner partly allowed the claim application made by the Appellants and fixed the compensation at Rs.48,600/-. The learned Commissioner noted that a sum of Rs.33,600/- was already withdrawn by the Appellants. Therefore, by the impugned Judgment and Order he -3- permitted the Appellants to withdraw a further amount of Rs.15,000/- out of the balance amount of Rs.33,600/- and permitted the second Respondent to take back the balance amount of Rs.18,600/-. 4. The submission of the learned Advocate for the Appellants is that after accepting the case made out by the Appellants in its entirety and after recording an affirmative finding on the first two issues, there was no occasion for the learned Commissioner to reduce the compensation amount. He submitted that to that extent the impugned Judgment and order is illegal. The first Respondent is the employer of the deceased. The first Respondent did not contest the claim made by the Appellants and he has not preferred any Appeal. 5. I have carefully considered the submissions. The first and second issues framed by the learned Commissioner and finding thereon read thus : 1. Whether it is proved by the applicants that deceased Ulhas Balan was workman within the meaning of section 4 of the Workmen’s Compensation In the Affirmative Act,1923 ? -4- 2. Whether it is proved by the Applicant that the accident had taken place near Wadkhal Tal.Pen Dist.Raigad on 1/9/1989 and it was out of and in the course of employment of the deceased Ulhas Balan with the opponent No.1 ? In the Affirmative. 6. The learned Commissioner also recorded a finding that the Appellants were dependents and were entitled to claim the compensation. The learned Commissioner also held that the second Respondent was liable to pay compensation. The learned Commissioner rejected the contention raised by the second Respondent that only the first Respondent was liable to pay compensation. In paragraph 14 of the Judgment, the learned Commissioner accepted the case made out by the Appellants that the deceased was drawing a monthly salary of Rs.750/- and even the case made out by the Appellants as regards the age of the deceased has been accepted. 7. The learned Commissioner has not recorded any reason for not granting the compensation of Rs.67,200/-. In paragraph 16 of the Judgment the learned Judge has noted that in terms of the order passed on 24th July 1990, the Appellants have withdrawn a sum of Rs.33,600/- and the balance amount has been -5- invested in the bank. The learned Commissioner proceeded to observe that though the Appellants have proved that they were the dependants of the deceased, they have not proved that they were the only legal representatives of the deceased. 8. In this regard it will be necessary to refer the examination in chief of the second Appellant. In the examination-in-chief the second Appellant has disclosed that she has another son and daughter. There was no suggestion given in the cross examination of the said witness by the Advocate for the second Respondent that the brother and sister of the deceased are his legal heirs or that they are his dependents. Therefore, there was no warrant for the learned Commissioner to hold that the Appellants have not proved that they were the only persons to receive the compensation. 9. The learned Commissioner has permitted the Appellants to withdraw a sum of Rs.15,000/- on the basis of concession by the learned Advocate for the second Respondent. In fact, there was no reason for the learned Commissioner to deny the entire balance amount of Rs.33,600/- to the Appellants. The learned Judge ought to have passed an order for payment of the entire amount of Rs.67,200/-. The learned Judge has, therefore, committed a serious error by reducing the amount to Rs.48,600/-. Therefore, the Appeal must succeed. -6- 10. Hence, I pass the following order : i) Impugned Judgment and Order dated 27th November 1990 is modified and it is directed that the Appellants will be entitled to recover a sum of Rs.67,200/- from the second Respondent. ii) The second Respondent will pay costs of the Appeal to the Appellants. iii) The second Respondent is directed to deposit with the learned Commissioner a sum of Rs.18,600/- which is withdrawn by the second Respondent with interest thereon at the rate of 6% p.a. from the date of withdrawal of the said amount by the second Respondent till the date of payment or realisation. The Appellants will be entitled to withdraw the said amount with interest. JUDGE JUDGE JUDGE