IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.10.2011 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN C.M.A.No.408 of 2006 The Commissioner Dharmapuri Municipality Dharmapuri ... Appellant Versus 1. Pappa @ Madhammal 2. Chinnu 3. Kalaiselvi 4. Minor Kousalya Rep. by her mother and Natural Guardian Kalaiselvi ... Respondents This petition has been filed under Section 30 of the Workmen's Compensation Act, 1923 against the award dated 28.10.2004 made in W.C.No.309 of 2003 on the file of the Commissioner, Workmen Compensation, Salem. For Appellant : Mr.V.R.Rajasekaran For Respondents : M/s.J.Sathiyamurthy for RR3 and R4 Mr.V.Kumaravelan for R1 & R2 JUDGMENT This appeal has been filed by the appellant, the Commissioner, Dharmapuri Municipality, challenging the award passed by the Commissioner for Workmen Compensation, Salem. The appeal is filed on the ground that the parents have come forward with the claim petition for the death of their son, who was an employee of the corporation and that the income of the deceased, which was taken for determination of the compensation, is not correct. 2. At the time of admission of this appeal, the below mentioned substantial questions of law were framed for consideration and they are:- (i) Whether the claim petition filed by the respondents 1 and 2 herein is maintainable in law? https://hcservices.ecourts.gov.in/hcservices/ (ii) Whether the tribunal is justified in allowing the claim when the accident occurred due to the negligence of the deceased in following the safety norms? (iii) Whether the amount of compensation worked out by the Tribunal on the footing that the deceased was drawing salary at Rs.4,000/- per month is correct and sustainable in law." 3. Even though three questions of law were framed in this appeal, the learned counsel for the appellant did not make any argument with regard to the question of law No.2 and he confined his argument only in respect of question of law Nos. 1 and 3 alone. 4. Admittedly, the deceased was an employee of the Corporation. It is also admitted that on 11.07.2001, when the deceased Murugan and two other persons were undertaking electrical work, as directed by the Commissioner of Dharmapuri Municipality, the appellant herein, he sustained electrical shock and died on the way to hospital. 5. The learned counsel for the appellant would mainly contend that the widow was already given the compensation amount, GPF and Family pension and therefore, the claim petition filed by the parents of the deceased is not maintainable. The claim petition was filed by the parents without specifying as to whether they are dependents of the deceased or not. Further, the learned counsel for the appellant would contend that the Tribunal, without taking into consideration that as per the Service Register, the actual pay of the deceased during the time of his death was Rs.3,000/- has determined the compensation amount by taking the pay of the deceased at Rs.4,000/- and therefore, the amount awarded by the Tribunal is excessive. 6. The learned counsel for the claimants/respondents would mainly contend that payment of pensionary benefits to the widow and children of the deceased will not be a bar for the claimants, who are parents of the deceased, to file the claim petition under the Workmen Compensation Act. Furthermore, the parents have filed the claim petition by impleading the wife and the minor children of the deceased as respondents as they are also entitled for the compensation in accordance with law. Further, there was a mediation took place, as directed by this Court and during the course of Mediation a settlement was arrived at in which the interest of all the parties concerned were taken note of. A joint memo was also filed by the respondents before this Court stating that the parents are willing to get 1/3 of the award amount and the widow and minor children shall take 2/3 of the amount for herself and on behalf of the minor child. In any event, the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the respondents would only contend that the amount awarded by the Court below is fair and reasonable and he prayed for dismissal of the appeal. 7. Heard both sides. The learned counsel for the appellant vehemently argued that the court below has failed to take into consideration that whether the parents are dependents of the deceased or not. According to the counsel for the appellant, a widowed mother is entitled for compensation in the event of death of his son as a bachelor. When admittedly the wife and children are surviving, the parents of the deceased establish that they are dependants, are not entitled to maintain the claim petition. 8. From a reading of section 2 (1) (d) of the Workmen's Compensation Act, 1923 would indicate that the word 'dependent' means and includes a widow and a minor children as Sub-section (i). Sub-section (iii) (c) of Section 2(1)(d) would categorically indicate that a parent, other than a widowed mother is also a legal heir if wholly or in part dependant on the earnings of the workman at the time of his death. Therefore, the parents are also entitled to maintain a claim petition. In the evidence also, it was stated that they are dependants of the deceased. The Deputy Commissioner has also taken note of the fact that the parents are without any source of income and they were totally dependent on the deceased for their survival. The appellant has not proved by any oral or documentary evidence that the respondents 1 and 2 are having any source of income. Further, the claimants were not even cross- examined before the Deputy Commissioner of Labour to disprove the claim made by the claimants. Taking into consideration the overall facts and circumstances of the case, I am of the view that it is not now open to the appellant to argue that the claimants are not dependent of the deceased and they are not entitled to maintain the claim petition. Therefore, I hold that the findings of the Deputy Commissioner that the parents are dependents and legal heirs of the deceased is well founded and the first question of law is answered against the appellant. 9. The learned counsel for the appellant would contend that the Tribunal has wrongly fixed the monthly income of the deceased as Rs.4,000/-. In the Service Register, it is clearly stated that at the time of the death, the deceased was drawing a sum of 2,975/- + Rs.25/-, totally Rs.3,000/-. In the SR book, it is also mentioned that the time scale of pay goes upto Rs.4,000/-, which the deceased will get in due course of time. But the fact remains that as on the date of death, the deceased was only earning Rs.3,000/- as time scale of pay and that alone should be taken for the purpose of determining the compensation amount. Therefore, taking the age of the deceased as 32 years, the relevant multiplier would be 203.85 and applying the same, the claimants are entitled only for a sum of Rs.3,05,775/- (Rs.3000 X 50/100 x 203.85). Accordingly, the compensation amount fixed by the Deputy https://hcservices.ecourts.gov.in/hcservices/ Commissioner of Labour is reduced to Rs.3,05,775/-. The Deputy Commissioner has further awarded a sum of Rs.2,500 towards funeral expenses, which is very reasonable and I am not inclined to interfere with the same. Accordingly, the third substantial question of law is answered in favour of the appellant and against the respondents 1 and 2. 10. In the result, the appeal is allowed, reducing the compensation from Rs.4,09,200 to 3,08,275/-. No costs. It is submitted that the the entire award amount has already been deposited by the appellant. If so, the appellants are at liberty to withdraw the compensation amount over and above Rs.3,08,275/- with accrued interest. Consequently, the respondents 1 and 2 herein are permitted to withdraw their respective shares along with accrued interest as per the memo filed into this Court, whereby the respondents 1 and 2 shall withdraw 1/3 of the amount and the respondent 3 shall withdraw 2/3rd amount, out of which, 50% belonging to the 4th respondent minor shall be deposited in any one of the Nationalised Banks and the accrued interest thereon, shall be withdrawn by his mother once in six months. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar Ogy To The Commissioner, Workmen Compensation, Salem. +1 CC to Mr.V.R.Rajasekaran, Advocate, Sr.No.64405 C.M.A.No.408 of 2006 KSJ(CO) MS:29/12/2011 https://hcservices.ecourts.gov.in/hcservices/