M J GEORGE Vs. SUMATHI

JUDGEMENT

(1.) This is an unfortunate case of a poor widow having had to wait for nearly 10 years to establish her claim for compensation under the Workmen's Compensation Act, 1923. Her husband Gopalan was a member of the crew of a fishing boat called 'Marina' which belonged to the appellant. The boat capsized in a storm while engaged in fishing at sea on 8-12-1965. . Her husband was on board at the time of the accident and he lost his life by drowning. The widow filed, on behalf of herself and her minor children, an application dated 12-4-1966 under the Workmen's Compensation Act. The employer raised various objections before the Commissioner. He contended that the deceased was not a workman employed by him, but was in fact his partner; and that the accident did not arise out of and in the course of employment. The Commissioner took more than four years to decide the case. By his order dated 1-7-1970 he held that the deceased was not a workman and dismissed the application without deciding the other questions. This order was challenged by the widow before this Court in AS No. 588 of 1970, and this Court by its judgment dated 3-9-1973 held that the deceased was a workman and remitted the case to the Commissioner for disposal of the matter afresh on the various issues involved. The case was beard by the Commissioner on merits. By his order dated 6-5-1974 he decided all the issues in favour of the claimant and awarded a sum of Rs. 7000 as compensation. The employer challenged this order before this Court under Art.226 of the Constitution. He contended that Gopalan lost his life as a result of an act of God namely, the storm and the employer could not be held liable in respect of such accidents. He further contended that the accident which caused the death of Gopalan did not arise out of and in the course of his employment and therefore the employer had no liability to pay any compensation. As a reason for not exercising his statutory right of appeal he stated that he could not afford the payment of Rs. 7000/-, which was a condition precedent for filing the appeal. He therefore prayed for a writ of certiorari to quash the Ext. P4 order of the Commissioner.

(2.) The writ petition was dismissed by judgment dated 2-1-1975. The learned Judge held that the workman lost his life as a result of an accident which arose out of and in the course of his employment, and the employer was liable to pay compensation in accordance with the provisions of the Act. The learned Judge also held that a petition under Art.226 was not maintainable as the statute provided under S.30 for a right of appeal.

(3.) This judgment is now challenged before us in the present appeal. The appellant says that the Commissioner (2nd respondent) did not enter a finding regarding the cause of the death. According to him, the Commissioner ought to have determined the question as to whether Gopalan's death was caused by an act of God and, if so, whether his employer had any liability under the Act to pay compensation as claimed by Gopalan's widow (1st respondent). He further says that the alternative remedy by way of appeal was not a bar to a petition under Art.226 of the Constitution.