S SUPPIAH CHETTIAR Vs. V CHINNATHURAI

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned District Judge of East tanjore, in O. P. No. 64 of 1953, rejecting the application for permission to sue as a pauper under Or XXXIII Rule 5 (d) (1) C. P. Code.

(2.) TILE allegations in the petition are: The first respondent is the owner of a licensed cargo-boat bearing No. 88. The second respondent is the-managing agent of the first respondent and is' also a contractor doing business at Negapattinatm. On or about 12-3-1852 the 2nd respondent on be-half of the first respondent engaged among others the petitioner's son Krishnaraju as a crew of the boat for the purpose of carrying beedi tobacco bundles from Nagapattinam port. After loading, the boat left the port on 12-3-1952. On the voyage-the petitioner's son died in the boat on 16-3-1853 near Tranquebar. On enquiry the petitioner learnt that death Of the petitioner's son was caused by the cross-beam of the mast of the boat breaking and falling on his son. The 2nd respondent who was to charge of the boat was negligent in not seeing that the cross-beam of the mast was in a fit condition. The petitioner, therefore, claimed a compensation of Rs. 3635 under the Workmen's Compensation Act and the Fatal accidents Act from both the respondents. A further sum of Rs. 135 was claimed as the balance of pay due to the deceased.

(3.) THE petitioner applied for compensation before the Commissioner for workmen's Compensation, Madras, as he claims to be a dependant of the deceased workman within Section 2 (d) of Act VIII of 1923. Presumably acting under some advice, the petitioner applied for the withdrawal of this petition before the Commissioner under Order 23 Rule 1 C. P. C. with liberty to agitate the matter by a suit in a court of law. The Commissioner, who is a layman, without realising that he had no power to do so, not only allowed the withdrawal of the petition but also granted permission to prosecute the claim in a civil court, Ex. A. 3. The petitioner has thereupon filed the present application to sue the respondents fn the pauper form in the District Court, East Tanjore.