FA/1005/2004 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1005 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= MASASINGH KISHANSINGH JAT & 1 - Appellant(s) Versus LAXMIBEN KESHAVJEE VEERA & 1 - Defendant(s) ========================================================= Appearance : MR DIPEN C SHAH for Appellant(s) : 1 - 2. RULE SERVED for Defendant(s) : 1, MR PALAK THAKKAR FOR MR HASMUKH THAKKER for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/07/2008 ORAL JUDGMENT 1.0 This appeal is directed against the judgment and order dated 19.08.2003 passed by the learned Commissioner under the Workmen's Compensation Act, FA/1005/2004 2/5 JUDGMENT Vadodara in W. C. Application No. 109 of 1998 whereby, the said application was dismissed. 2.0 The facts in brief leading rise to the filing of the present appeal are as under; 2.1 Deceased - Sukhdevsingh Masasingh Jat, son of the appellants herein, original claimants, was working as a Conductor in the Truck bearing registration No. GJ-1-TT- 4036, belonging to the respondent no. 1, original opponent no. 1. 2.2 On 17.09.1998, while the deceased was discharging his duties, the said Truck met with an accident near Kajipura with another Truck, on account of which the deceased died on the spot. 2.3 The parents of the deceased, the appellants herein, filed an application before the Commissioner appointed under the W. C. Act, Vadodara claiming compensation. In the said application, only respondent no. 2 – Insurance Company filed its written statement. The Court below, after hearing the parties and after considering the evidence on record, dismissed the application of the appellants. Hence, this appeal. 3.0 Mr. Dipen C. Shah, learned Advocate for the appellants, has submitted that the deceased son of the FA/1005/2004 3/5 JUDGMENT appellants was unmarried and aged about 19 years at the time of the accident. He has submitted that the appellants were fully dependent upon their deceased son at the relevant point of time and that necessary averments to that effect were also made in the application filed before the Court below. However, the Court below has committed serious error in law and facts in arriving at the conclusion that the appellants were not dependent on the deceased. 3.1 Learned Advocate for the appellants has relied upon a decision of this Court in the case of Premilaben, Wd/o. Dashrathbhai Motibhai Naik v. Bachurao Jadav & Ors. reported in 2007 (3) G.L.H. Pg. 345 wherein, it has been held that the criteria to decide whether a person shall fall within the ambit of the term “dependent” is that whether on the date of the accident, the said person was dependent on the deceased or not. It was further held therein that the parents have to establish the relationship and further that they were wholly or in part dependent on the earning of the deceased at the time of his death. 3.2 Learned Advocate has submitted that in the present case, the appellants have proved beyond doubt that on the date of the accident, they were dependent on their deceased – son. Hence, the Court below has committed serious error in rejecting their application. FA/1005/2004 4/5 JUDGMENT 4.0 Mr. Palak Thakkar, learned Advocate appearing on behalf of Mr. Hasmukh Thakkar for respondent no. 2 – Insurance Company, has submitted that from the evidence on record it is not established that the appellants were dependent on the deceased and therefore, the Court below was justified in rejecting the application of the appellants. He has relied upon a decision of this Court in the case of Imammiya Sadrumiya Malek & Ors. v. Mahmadhusen Nabibbhai Shaikh & Ors. reported in 1985 G.L.H. Pg. 552 wherein, it has been held that to claim compensation, it is necessary to prove that the claimants, who are legal representatives, were dependent on the deceased. 5.0 Heard learned counsel for the respective parties and perused the documents on record. Though served none appears on behalf of respondent no. 1. From the evidence of the claimant at Exhibit – 17, it is established that the deceased was the son of the appellants and that at the time of the accident, the deceased was earning monthly salary of Rs.2,500/- plus daily allowance of Rs.50/-. From his cross- examination before the Court below, it appears that no question regarding the aspect of dependency was put to the claimant. The said question regarding dependency was not disputed by the respondents before the Court below and it has been raised for the first time only before this Court, which could not be permitted. FA/1005/2004 5/5 JUDGMENT 6.0 Thus, looking to the evidence on record and keeping in mind the principle laid down in Premilaben's case (supra), I have no hesitation in arriving at the conclusion that the appellants were solely dependent on their deceased – son at the time of the accident. In my opinion, the Court below has committed serious error in law and facts in rejecting the application of the appellants. Consequently, the appellants shall be entitled for compensation as claimed for by them. 7.0 For the foregoing reasons, the Appeal is allowed. The appellants – original claimants will be entitled to an amount of Rs.2,25,000/- [Two lacs twenty five thousand only] towards compensation with interest @ 12 per cent per annum from the date of the application till its realization. The respondent no. 2 – Insurance Company shall make good the aforesaid amount forthwith. The appeal stands disposed of accordingly. No order as to costs. [K. S. JHAVERI, J.] Pravin/*