B M HABEEBULLAH MARICAR Vs. PERIASWAMI

JUDGEMENT

(1.) ONE Arumugham was employed with the petitioner as a workman and, while on duty, died as a result of a fall from a tractor on the 29th of October, 1969. His mother filed a claim for Rs. 3,500 under the Workmen's Compensation Act (hereinafter referred to as the Act) before the Commissioner having jurisdiction, but the same was contested by the petitioner. During the tendency of that claim with the Commissioner, Arumugham's mother also died, whereafter her son Periaswami (respondent No. 1) and her two daughters Thailammal and anjalai (respondents Nos. 2 and 3 respectively) made a joint application to the commissioner praying that they be substituted for their mother as her legal representatives. That application was also contested by the petitioner but was accepted by the Commissioner with a finding that the right to the claim survived to the three respondents and that they were entitled to be substituted as legal representatives for their mother. The order of the Commissioner is dated the 30th of January 1972 and it is that order by which the petitioner feels aggrieved and which he has attacked under art. 226 of the Constitution of India with a prayer that it be quashed by a writ of certiorari.

(2.) THIS petition originally came up for hearing before me sitting singly and it was then contended in support of it that compensation payable under the Act could be claimed only by the injured workman or, in case of his death, by a body of persons described by the Act as 'dependants' and not by any other person, that admittedly none of the respondents was a dependant within the meaning of that expression as used in the Act and that the application made by the respondents before the Commissioner for substitution of their names as their mother's legal representative, was liable to be rejected. Reference in this connection was made to various provisions of the Act and specially to S. 9 which inter alia bars the devolution by operation of law of any lump sum or half-monthly payment payable under the Act to any person other than 'the workman' and to CL. (n) of sub-s. (1) of S. 2 which defines 'a workman' and states that any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. This contention was sought to be met by the dicta in various judgments more particularly the one in Ikkassintakath Abdurabiman v. Nadakkavu Nalikkal beeran Koya, 1938-1 LJ 571: (AIR 1938 Mad 402) to the effect that the later part of S. 9 according to which no lump sum or half-monthly payment shall pass to any person other than the workman, applies only to a workman who is in existence when the time for payment comes and not to one who died before compensation was awarded. As no reference to the definition of workman as appearing in the Act was made by the learned Judges who decided that case which, in my opinion, made all the difference to the determination of the point in dispute. I referred the case for decision to a Full Bench and that is how we are now seized of it.

(3.) SECTION 9 of the Act reads thus: