HIRABHAI GHUSABHAI DHAPA Vs. KANUBHAI D PATEL

JUDGEMENT

(1.) THE appellant, original claimant, being aggrieved by the judgment and order dated 03.01.07 passed by the Workmen's Compensation Commissioner, Bhavnagar in W.C. [F] Case No. 13 of 1997, has preferred the present appeal under section 30 of the Workmen's Compensation Act, 1923 [hereinafter referred to as the Act].

(2.) MR . Harshal M Shah, learned advocate representing the appellant submitted that the distraught heir and legal representative of the workman, who sustained fatal injuries on 12.03.97, has filed the claim petition claiming compensation of Rs.1.50 lakhs with 12% interest from the opponent. It is submitted that the deceased sustained injuries during the course of employment with the respondent on 12.03.97. Learned advocate further submitted that the learned Commissioner, without considering the evidence adduced by the appellant on record of the case in its proper perspective, rejected the claim petition. He further submitted that the learned Commissioner has erred in holding that the appellant cannot be considered as a dependent within the definition of 'dependent' as provided under section 2 (d) of the Act. The learned Commissioner also erred in not considering the age of the deceased as 52 years on the date of the accident and erroneously held that he was approximately 80 years of age as per the Post Mortem Report and as the deceased was not working with the respondent -contractor, he cannot be said to be an employee within the meaning of the Act, and, therefore, the claimant is not entitled to claim compensation as set out in the claim petition. Learned advocate further submitted that on the basis of the oral deposition and documentary evidence on the record of the case, the appeal requires to be allowed and the order passed by the learned Commissioner is required to be quashed and set aside.

(3.) AS against the aforesaid contentions raised by the learned advocate for the appellant, Mr. Mukesh Rathod for the respondent submitted that the learned Commissioner has considered the evidence on record of the case and the oral deposition adduced by the applicant, and after considering the same, rightly came to the conclusion that the deceased was not an employee of the respondent contractor and, therefore, the appellant cannot claim compensation from the respondent. He further submitted that the deceased was aged 80 years on the date of the accident and, therefore, that fact was reflected in the Post Mortem Report submitted during the course of the proceedings and as the deceased was not in the employment of the respondent, the claim was rejected by the trial Court. He further submitted that the trial Court also considered as to whether the applicant was 'dependent' within the meaning of the Act and after considering the same, held that the claimant was not a dependent within the meaning of the definition of 'dependent' in the Act and, therefore, his claim was rightly rejected by the learned Commissioner.