1. This appeal u/s 30 of the Workmen''s Compensation Act is directed against the order dated 30,9.2002 passed by the Presiding Officer -cum-Commissioner under Workmen''s Compensation Act, Labour Court, Hazaribagh in W.C. Case No. 2 of 2000 whereby he has allowed a total compensation of Rs. 80.000/-(Rupees Eighty thousand) on the application filed by respondent No. 1 on account of death of his father,
2. A claim case was filed by the applicant/respondent No. 1 under the Workmen''s Compensation Act, 1923 (In short the said Act) for the grant of compensation on account of accidental death of his father Ram Ball Chaurasiya. an employee employed under the appellant/Central Coalfields Ltd., Hazaribagh.
3. The brief facts of the case is that the deceased Ram Ball Chaurasiya was working as labour in Giddi ''A'' Colliery of the then NCDC which was subsequently merged in Central Coalfields Ltd. On 6.7.1968 while his father had been on his duty inside the coal mines, due to fall of heavy pieces of coal, he died inside the mines. The case of the claimant was that at the time of accidental death of his father lie was in the womb of his mother Jiramani Devi and just after one month of death of his father the claimant was born. But unfortunately when he was aged about 5 years his mother Jiramani Devi solemnized her second marriage and she started living with her second husband. The claimant''s further case was that he was brought by his maternal uncle and when he became major gave a notice to the opposite party for payment of compensation on account of accidental death of his father. When the compensation amount was not paid to him, he filed a claim case in the Court of Workmen''s Compensation Commissioner, Hazaribagh. In 2000, when the claimant filed the instant application, he was aged about 32 years.
4. The appellant contested the case on the ground inter alia that claim application was not maintainable and was barred by limitation and that claim application was filed without giving any notice to the appellant. Further case of the appellant/opposite party was that the deceased father of the claimant was not working under the appellant as labour and he had not received any personal injury by an accident arising out of and in course of employment.
5. The Commissioner. Workmen''s Compensation formulated the following issues for consideration:
(i) whether this case is maintainable in its present form.
(ii) Whether this case is barred by law of limitation.
(iii) Whether the applicant is entitled to get compensation and if so what will be the quantum of the compensation.
6. While deciding issue Nos. (1) and (ii), the Commissioner held that admittedly the case was filed after 29 years of the death of the deceased father of the applicant when the applicant was in the womb of his mother and few years after taking birth, his mother solemnized second marriage. After attaining majority the claimant raised the matter by filing a petition. The Commissioner therefore held that delay in filing the application was bonafide one and the limitation has been condoned. Consequently claim application is maintainable. For better appreciation paragraphs 10 to 12 of the order of Commissioner is quoted herein below :
"Admittedly this claim case has been filed after 29 years of the death of the deceased Ram Ball Chaurasiya father of the applicant. But as the applicant was in the womb of his mother at the relevant time of death of his father and after the birth of the applicant his mother solemnized her marriage with second husband, the delay caused in tiling of the case appears a bonafide one. It has become in the evidence of the applicant that applicant was brought up by his maternal uncle and when he attended the age of majority, filed the instant case along with a condonation petition which was already been condoned by Dy. Labour Commissioner vide his order dated 20.4.1994. From the record also transpires that applicant raised the matter before the opposite party by filing a petition, a copy which has been marked Exhibit I."
So far the cited decision by the Opposite Party is concerned, i.e.
Thus from the aforesaid discussed facts, I find that the delay of 29 years appears a bona fide one and as the limitation has been already condoned by Dy. Labour Commissioner. Hazaribagh in the instant case. It is held that this case is maintainable in its present form and same is not barred by law of limitation and the cited decision by the opposite party has got no relevancy with this case.
7. Mr. A.K. Mehta learned counsel for the appellant assailed the finding of the Commissioner as being illegal and without jurisdiction. Learned counsel submitted that admittedly on the date of death of the deceased the claimant was not in existence and therefore he was not dependent of the deceased employee at the time of his death. In this regard, learned counsel relied upon the decision of the Calcutta High Court in the case of
8. The first interesting question arose for consideration is as to whether claim application is maintainable at the instance of the claimant who was not even born on the date of death of his father rather he was in his mother''s womb.
9. The right of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal personality attributed to him by way of anticipation falls away ab initio if he never takes his place among the living. Abortion and child destruction are crimes. A posthumous child may inherit: but if he dies in the womb, or is stillborn his inheritance fails to take effect, and no one can claim through him, though it Would be otherwise if he lived for an hour after his birth.
10. In the book "Salmond on Jurisprudence (7th Edition)" the author observed ;
"A Child in its mother''s womb is for many purposes regarded by a legal fiction as already born in accordance with the maxim. Nasciturus pro jam nato habetur in the words of Coke; The law in many cases hath consideration of him in respect of the apparent expectation of his birth" Thus, in the law of property, there is a fiction that a child en Venture sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a lij, chosen to form part of the period in the rule against perpetuities.
11. It is. therefore, clear that there is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all: but it is none the less as real and present ownership. The man may settle property upon his wife and the children to be born of her. Or he may die intestate, and his unborn child will inherit his estate.
12. The right of succession under Hindu Law is a right which vests immediately on the death of the owner of the property. It cannot in any circumstances remain in abeyance in expectation of the birth of a preferable heir, not conceived at the time of owner''s death. However, a son or a daughter who is in the mother''s womb at the time of death is, in contemplation of taw actually existing and will on his or her birth divest the estate of any person with a title inferior to his or her own. who has taken in the meantime,
13. Regarding the right of a son born Lo a father in as Mitakshara family and after partition had taken place between the father and his other sons different views are expressed. According to one view, the partition is to be opened up again and in order to give the after-born son the share which he would have had if he had been in existence at the time. Another view is that after-born son is to receive the share of the father alone. The principle "Ennventre Sa Mera" applies and a son who was in his mother''s womb at the time of partition but was born subsequent to it is entitled to reopen the partition and to receive a share equal to that of his brother. For a son in the womb is in point of law m existence.
Section 20 of the Hindu Succession Act reads as under;
A child who was in the womb at the lime of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the death of the intestate."
14. From the reading of the aforesaid provision, it is manifest that this section imports a fiction saying that the child in the womb shall be deemed to have acquired a right to inheritance to the intestate as if he or she had been born before the death of the intestate. The concept behind this is that at the time of death of the intestate the child is alive and acquires equal right along with other heirs. The right of succession cannot, however, be exercised unless the child is born alive. This section is statutorily recognizes the Mitakshara Hindu Law prior to the commencement of the Act.
15. It is, therefore clear that this section is based on the*fiction that an unborn child who was in the mother''s womb will be presumed to have been born before the death of the intestate and will be entitled to inherit from the latter with effect from the date of death. Two conditions are therefore, necessary to be fulfilled for this section to apply. The first is that the child must be in the mother''s womb at the time of death of the intestate. The second is that the child must be born alive, no matter whether he or she lived long or survived for a short while. In other words, the inheritance shall be deemed to vest in the posthumous child from the moment of the succession opened as a result of death of the intestate.
16. In the case of Anupriya Bat v. Jagdish 1977 MPLJ 7. a Bench of the Madhya Pradesh High Court observed that the effect of Section 20 is that during the period from the date of death of the intestate and the date of birth of the child who acquires a right of inheritance by virtue of Section 20, such inheritance does not become enforceable and remains suspended till the birth of the child.
17. It is by fiction or indulgence of the law that the rights of a child born in justo matrimonio are regarded by reference to the moment of conception and not of birth and the unborn child in the womb, if born alive, is treated as actually born for the purpose of conferring on him benefit of inheritance. The child in embryo is treated as in esse for various purposes when it is for his benefit to be so treated. In the case of Bayava Sudapa Desai v. Prava Tewa 1933 Bom 126, Partkar J. considering a similar question and held that by Hindu Law, as a general principle, a person entitled to succeed the estate of the deceased includes the child in embryo and children subsequently adopted.
18. The decision of the Calcutta High Court in the case of Pasupati Dutt. v. Kelvin Jute Mills (supra) is on a different footing and it will not help the appellant in the facts of the instant case. In that decision the Calcutta High Court held that on the death of a workmen through some accident in course of employment, the right. to the compensation payable by the employer in the workmen''s Compensation Act vest in his dependent or dependents actually existing at the time of his death and if such dependents before any claim such compensation is made or investigated the right passes to his heirs or legal representatives as they are included in the word "dependent".
19 Section 2(d) defines the word dependent which means and includes inter alia a widow, minor legitimate or adopted son and unmarried legitimate or adopted daughter or the widow mother. The dependent mother may at the time of death of her husband be at the advance stage and having a child in her womb. In the light of the discussions made herein above, we have no hesitation in holding that a child in the mother''s womb at the time of death of his father shall come in the category of dependent and legal personality attributed to him and therefore such child in mother''s womb shall be deemed to have acquired a right to claim compensation after his birth but subject to law of limitation,
20. The next issue that falls for consideration is whether the finding of the Commissioner that application was not barred by limitation is justified.
21. Admittedly, deceased father of the claimant died in 1968 and few months alter his death the claimant was born. The claim application was filed after 29 years from the date of death of his father. Section 10 of the Workmen''s Compensation Act prescribes the period for filing claim for compensation. According this section no claim for compensation shall be entertained by the Commissioner unless notice of accident has been given in the manner provided as soon as practicable and unless claim is preferred within two years of the occurrence of accident or in case of death. within two years from the date of death. Proviso to the aforesaid section empowers the Commissioner to entertain claim application not filed in due time provided Commissioner is satisfied that failure to do so was due to sufficient cause. In other words, the Commissioner may condone the delay in filing such claim application beyond time if he is satisfied that such delay was due to sufficient cause.
22. Admittedly, claim was filed by the claimant more than 29 years after his birth and about 14 years after he attained majority. No explanation has been given or causes have been shown for not filing the claim for 14 years after attaining majority. Admittedly, the claimant was brought up by his maternal uncle. The Commissioner has committed error of record in holding that the claim application was filed after the claimant attained majority.
23. Apart from that. admittedly. claimant''s father died leaving behind widow who was dependent at the time of his death within the meaning of Section 2(d) of the said Act. As held above, the claimant who was in his mother''s womb was also dependent within the meaning of the said Act and took birth within few months thereafter. The widow did not maintain a claim for compensation rather went for a second marriage and started living with her second husband. In such circumstances also the claimant will not even be entitled to the benefit of Sections 6 7 and 8 of the Limitation Act. Section 7 deals with the case where one of several person Jointly entitled to maintain the claim under disability and discharge can be given after concurrence of such person, time will run against them all; but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until disability has ceased.
24. Be that as it may. claimant attained majority in 1986 at the age of 18 years but for about 14 years no claim was lodged before the Commissioner after attaining majority. The Commissioner therefore, in absence of sufficient evidence has committed serious illegality in condoning the delay of 14 years in filing claim application. We are, therefore, of the view that claim application of the claimant/respondent was hopelessly barred by limitation.
25 The Question whether there was any evidence before the Commissioner on which he could properly be satisfied that there was sufficient cause for not giving notice in proper time and not filing claim within time is one of law on which this Court can interfere in appeal u/s 30 of the said Act, it is well settled that condonation on the ground only on ignorance of law of limitation can be interfered with by the High Court. It is equally well settled that if a question of fact is decided by considering material which is irrelevant or the decision is based on no evidence or on conjecture and surmises then clearly an issue of law arises. Normally, the finding of fact recorded by the Commissioner in the matter of condonation of delay is not interfered with but certainly when such condonation of delay is of a long period and no evidence is led to satisfy the delay then such order needs interference by this Court.
26. So far issue of quantum of compensation is concerned, we do not find any irregularities in the assessment of compensation made by the Commissioner but since claim itself was barred by limitation, question of payment of compensation does not arise.
27. For the aforesaid reasons, this appeal is allowed and the impugned order passed by the Presiding Officer-cum-Com-missioner under Workmen''s Compensation Act, Labour Court. Hazaribagh in W.C. Case No.2 of 2000 is set aside. Consequently. It is held that claim application filed by the claimant/respondent No. 1 before the Commissioner was hopelessly barred by limitation.
Vishnudeo Narayan. J.
28. I agree.
