JUDGMENT
A.K. Mathur, J.
1. This is an appeal against the judgment dated 22-9-1981 passed by the Commissioner under the Workmen Compensation Act, Sri Ganganagar (here in after referred to as ‘the Commissioner’).
2. The brief facts giving rise to this case are that deceased Santosh a minor received injuries during the course of employment of non-applicant on 5-12-1976, which resulted on his death on 24-12-1976. The father of the deceased filed an application before the Commissioner claiming compenstion as dependent of deceased and claimed a sum of Rs. 13,500/- on the basis that the deceased was earning Rs. 5/- per day as wages.
3. The non-applicant contested the claim and denied the employment of the deceased with them and pleaded complete ignorance about the accident. It was contended that the deceased expired on account of accident some where else and not in his factory.
4. On the basis of the pleadings of the parties as many as six issues were framed. The applicant examined himself as PW 1 and PW 2 Gyan Singh. As against this, non applicant examined himself as DW 1.
5. The learned Commissioner after recording the necessary evidence came to the conclusion that the death of the deceased took place during the course of the employment of the non-applicant and he determined the amount of compensation in the sum of Rs 13,500/-and also allowed interest in the sum of Rs. 3,240/- at rate of 6% simple interest upto December, 1981. He also levied a penalty under Section 4A(3) of the Workmen’s Compensation Act. 1923 (here in after referred to as ‘the Act’) and also allowed court fees and witnesses expenses. Thus, total sum of Rs. 23,570/’-were awarded as compensation. Aggrieved against this order of the Commissioner, the present appeal has been filed by the appellant-non-applicant.
6. Mr. Singhal, learned Counsel for the appellant strenuously urged that the learned Commissioner has committed a serious irregularity in accepting that the deceased was employed with the appellant-non-applicant. He has also contended that there is no medical evidence on record to show that whether he died out of the accident occurred in the factory of the non-applicant employer. Learned Counsel further submitted that no notice under Section 10 of the Act was given to the employer before filing the claim petition. Learned Counsel also submitted that no evidence has been produced to show the dependency of the parents on the minor son. He has joined the issue on the question of interest and penalty.
7. Mr. Parihar, appearing for the respondent has opposed the contentions raised by Mr. Singhal.
8. I have heard learned Counsel for both the parties and have also perused the record.
9. The first question which arises for determination is whether the deceased was in the employment of the appellant-non-applicant or not. Though the learned Commissioner has used certain statements in his judgment which were recorded during the criminal proceedings, but that was not proper on the part of the learned Commissioner to have referred to the evidence which was not recorded before him nor was tendered in proper manner before him. However, before me there are statements of PW 1 and PW 2. PW 1 is the father of the deceased Santosh, has deposed that his son was working in the factory of the appellant and while he was working on the Charkhi and putting cotton in the Charkhi his hand was stuck in the Charkhi machine. The Charkhi was stopped and the deceased was taken to the Hospital where he expired after 17-18 days. PW 2 Gyan Singh is said to be co-worker in the same factory and he has also supported the testimony of PW 1 Surjeet. As against this DW 1 Om Prakash has denied that the deceased was at any time in the employment of the appellant or even PW 2 Gyan Singh was in his service at any time.
10. I have gone through the statements of the witnesses and the finding recorded by the learned Commissioner and I think that there was sufficient material before the learned Commissioner to hold that the deceased was in the employment of the appellant non-applicant. From the testimony of PW 1 Surjeet and PW 2 Gyan Singh it further transpired that the accident took place in the factory of the appellant-non-applicant in which the deceased died. Thus, at the time when the accident took place the deceased was in the employment of the appellant-non applicant and he died after the accident occurred during the course of employment of the non-applicant-appellant.
11. The next question which has been urged before me is that no medical evidence has been produced to show the death of deceased Santosh. Suffice it to say that the statements of PW 1 Surjit and PW 2 Gyan Singh who have deposed that the deceased died in the hospital out of the accident which took place in the factory premises of the appellant clearly proved the death of the deceased Santosh. Thus, simply because a Doctor has not been examined that will not change the nature of death of the deceased. It is not the case of the appellant non-applicant that the boy Santosh did not die Therefore, the testimony of PW 1 and PW 2 clearly establishes the death of the deceased and it further establishes that he died out of that accident which took place in the factory premises of the non-applicant-appellant.
12. The next question is regarding notice under Section 10 of the Act. Suffice it to say that Section 10 itself says that any defect or irregularity or any short coming in compliance of Section 10 will not render the claim petition infructuous. Thus, the irregularity in not giving a notice under Section 10 of the Act will not result in dismissal of the claim petition.
13. Now, coming to the question of dependency it is true that no definite evidence has been led by the applicant as to what extent the applicant was dependent on the deceased. But it has come in the evidence that his father PW 1 Surjit and the mother of the deceased were all serving in the same factory and were earning Rs. 5/-per day. In this back ground it is quite apparent that these petty wage earner could not survive with the petty sum of Rs. 4/- or 5/- per day. Therefore, it is obvious that father, mother and other children would be pooling their livelihood by working in the factory. It is true that the parents were not wholly dependent on the deceased But they are partly dependent on the deceased. As per the definition of ‘dependent’ given in Section 2(d) of the Act which clearly lays down that if a parent is wholly or partly dependent on the earning of the workmen then parent other than a widow mother, a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate can claim compensation The definition of ‘dependent’ has been made more flexible and wide enough to encompass even parents of the deceased. Thus, looking to the wide definition of ‘dependent’ it can certainly be inferred that parents who were having such a petty income could not have survived comfortably without the small contribution of the deceased son. In these circumstances, the dependency of the parent is a matter of inference and the same was been inferred by the learned Commissioner and that cannot be said to be wrong.
14. Mr. Singhal, learned Counsel for the appellant has invited my attention to Kunne Singh Bhanwar Lal v. Navia 1965 RLW 214 to show that in that case since the applicant failed to prove the dependency therefore the dependent parents were not allowed compensation. So far as the case referred by the learned Counsel for the appellant is concerned, suffice it to say that on the facts of that particular case it was found that the applicant has failed to prove the dependency. But in the present case the dependency is more than apparent because it is difficult to survive on so petty income. As such it is so far accepted that the deceased was contributing some amount to the common pool for surviving. I hold that in the present situation an inference of dependency can certainly be inferred on the facts and circumstances of the present case as it is difficult for these petty wage earner like the applicant to pull their livelihood without the assistance of deceased Santosh. This contention of learned Counsel also fails.
15. Now coming to the question of interest and penalty. So far as grant of interest at rate of 6% per annum is concerned the same cannot be said to wrong or bad in any respect. As a matter of fact the plea taken by the owner is so perverse as he has gone to the extent of denying the employment. Therefore, no concession on the question of interest can be made in the present case. However, so far as imposition of penalty is concerned that appears to be excessive and the learned Commissioner has levied the penalty to the fullest, extent. Therefore, I think it reasonable and proper to reduce the amount of penalty by Rs. 3,000/-. Thus, the amount of penalty is reduced from Rs. 6,750/- to Rs. 3,750/-. The court fee and the witness expenses does not require any modification.
16. Thus, in the result, the appeal is allowed in part and the total amount is reduced from Rs. 23,570/- to Rs. 20,570/-. The parties are left to bear their own costs.
