KUNCHALI RUDRANI Vs. BABY

JUDGEMENT

(1.) The appellant is the mother of Anirudhan who on 6-3-1978 died of an accident that arose out of and in the course of his employment. The Commissioner for Workmen's Compensation apportioned under S.8(5) of the Workmen's Compensation Act, 1923 (hereinafter mentioned as the Act) the compensation - amount of Rs. 6000/- deposited by the employer under S.10A(2) of the Act, between the appellant, and the respondent, an infant now aged 7, allotting to the former Rs. 2000/- and to the latter, Rs. 4000/-. The Commissioner found that the respondent child is the illegitimate daughter born of Anirudhan to its mother, Mercy, a woman married to another - one Joseph Peter - who is alive. Mercy's claim that she is the widow of Anirudhan was not accepted by the Commissioner since she failed to establish that her marriage to Joseph Peter does not subsist. The appellant contends that the Commissioner should have applied S.112 of the Evidence Act, 1872 and found that the respondent child is the legitimate daughter of Joseph Peter, and on that basis claims the whole of the compensation - amount.

(2.) Mercy has sworn that Anirudhan married her in the Gandharva form of marriage, that they were residing together as husband and wife for a period of over three years immediately preceding Anirudhan's death in a rented room in Koonayil and that the respondent child was born to them. She was not cross examined. Evidence adduced by the appellant shows that Joseph Peter resides in Sasthamkotta village. Mercy also produced before the Commissioner the extract from the Birth Register kept in the Primary Health Centre, Kalakodu, which shows that a female child was born to her on 18-4-1967 at the Primary Health Centre and that that child's father is Anirudhan. The Commissioner believed Mercy and accepted her evidence consisting of her deposition and the extract from the Birth Register to find that the respondent child is the daughter of Anirudhan. The Commissioner rejected Mercy's claim that she is the widow of Anirudhan since in 1961 she was married to Joseph Peter and it has not been established that that marriage has been validly terminated wherefore she was not Anirudhan's legally wedded wife.

(3.) The first question for consideration is whether the Evidence Act, 1872 is applicable to proceedings before the Commissioner for Workmen's Compensation. The Evidence Act, 1872, as seen from S.1 thereof, 'applies to all judicial proceedings in or before any court'. Are proceedings before a Commissioner 'judicial proceedings in or before a court' . Speaking of an industrial tribunal Kania C. J. in Bharat Bank v. Employees of Bharat Bank (AIR 1950 SC 188) said that such a 'tribunal is discharging functions very near those of a court, although it is not a court in the technical sense of the word'. Mahajan J. in the same case said (para 27) that industrial tribunals 'may rightly be described as quasi judicial bodies because they are out of the hierarchy of the ordinary judicial system'. Das J. in Province of Bombay v. Khushaldas (AIR 1950 SC 222) said: