Report No. 134
3.1.7. There are very good reasons for recasting the scheme for payment of compensation under the Workmen's Compensation Act on the model of the Provident Fund scheme (P.F. scheme, for short) of compensation outlined hereinabove which is more just, equitable, and beneficial. The reasons are:-
(1) What is considered as a good solution to prevent economic dislocation of the family and for securing socio-economic justice by the Legislature in the case where a bread-winner of a family suddenly dies in the course of service [in cases where there is no nomination under the Provident Fund Act and the Scheme] for protection of the dependant family members of a deceased employee can justly be considered as good enough in regard to the dependant family members of a workman who meets with a fatal accident in the course of and arising out of his employment. Whether sudden death is natural or accidental, consequences are the same.
(2) On an analysis of the P.F. scheme, it is evident that care has been taken of the principle which informs the existing scheme under the Workmen's Compensation Act, namely, of extending a protective umbrella to the dependant family members in preference to those who are capable of making their own living and are not dependent on others.
(3) Instead of leaving the matter as to 'whom' to pay and 'how much' to the Commissioner as per the existing scheme, the model scheme identifies the beneficiaries and defines the proportion in which compensation is to be distributed amongst them. In the said scheme, all dependants are entitled to share equally.
(4) Care has been taken in the P.F. scheme to enstire that the widow of a deceased workman and the minor children of the workmen are by the very nature of things accorded preference vis-a-vis the other close relatives by reason of the fact that the plight and need of the former is obviously greater than that of the others.
(5) The P.F. scheme unlike the existing workmen's compensation scheme also takes care of the situation where the deceased workman happens to be a female, which aspect has assumed importance by reason of the fact that now more and more women are being engaged in employment.
(6) A widower under the existing provision has to show that he was wholly or partly dependant on the workman at the time of her death before he could claim a share in the amount of compensation, whereas under the P.F. scheme he has been equated with, a "widow" and he need not prove actual dependency.
(7) A widowed daughter-in-law and children of a pre-deceased son under the existing scheme must be wholly or partly dependant on the earnings of the deceased, whereas in the P.F. scheme actual dependency is not required to be proved.
(8) As per the existing scheme dependant parents-in-law of a deceased female workman are not entitled to compensation, Under the P.F. scheme they have been made entitled to a share in compensation.
(9) Under the P.F. scheme the compensation amount does not lapse if the specified dependants do not exist and is in such an event inherited by the legal heirs. The P.F. scheme is thus superior to the existing scheme under the Workmen's Compensation Act.
3.1.8. In one respect, however, the P.F. scheme taken as a model needs to be improved upon. While a major son might be excluded on the premise that he must be considered capable of earning for himself so that the minors who are not capable of looking after themselves are preferred to those who have attained majority, the case of a physically or mentally handicapped major son or daughter would deserve a sympathetic consideration. The Commission is, therefore, of the view that such a child should not be excluded. The scheme which is proposed to be recommended, therefore, takes care of this aspect.
3.1.9. The Commission accordingly recommends that the definition of "dependant" contained in section 2(1)(d) of the Workmen's Compensation Act, as also the scheme of distribution as contained. in section 8(5) of the Act, should be deleted and should be replaced by proposed provisions on the following lines by making suitable amendments:-
(Proposed clause (d) of sub-section (1) of section 2 in the light of the recommendations)
(d) "dependant" means any of the following members of the family of a deceased workman;
(i) in the case of a male workman,- his wife, his children whether married or unmarried, his dependant parents and his deceased son's widow and children,
(ii) in the case of female workman,- her husband, her children whether married or unmarried, her dependant parents, her husband's dependant parents, and her deceased son's widow and children.
Explanation.-In either of the above two cases, if the child of the deceased workman or, as the case may be, the child of a deceased son of the workman has validly been adopted by another person, such child shall be considered as excluded from being dependant of the deceased workman."
(Proposed sub-section (5) of section 8 in the light of the recommendations)
"8. (5) Compensation deposited in respect of a deceased workman shall be dealt with as under:-
(i) if the deceased workman has left dependants and their number is more than one, such, compensation shall be apportioned amongst those dependants in equal shares:
(a) subject to the provisions of Explanation II to this clause, no share shall be payable to sons who have attained majority on or before the death of the deceased workman;
(b) subject as aforesaid no share shall be payable to sons of a deceased son who have attained majority on or before the death of the deceased workman;
(c) no share shall be payable to married daughters;
(d) no share shall be payable to married daughters of a deceased son; if there is any dependant other than those specified in clauses (a), (b), (c) and (d):
Provided further, that the widow or widows of a deceased son, and child or children of a deceased son, shall receive between them in equal parts only the share which that son would have received, if he had survived the workman and had not attained majority on or before the death of the workman.
(ii) If the deceased workman has left only one dependant, the whole amount shall be payable to that dependant.
(iii) In any case to which the provisions of clause (i) or clause (ii) do not apply, the whole amount shall be payable to the person who- under the law of succession applicable to the deceased workman, would be legally entitled to succeed to the estate of the deceased workman on intestacy.
Explanation I.-For the purposes of this sub-section, a workman's posthumous child, if born alive, shall be treated in the same way as a child born before the workman's death who survives him.
Explanation II.-For the purposes of this sub-section, a son or daughter whose capacity to earn is affected by any physical or mental abnormality or injury shall be treated in the same way as a son or daughter who has not attained majority and shall not be excluded under clause (a) or clause (b).
3.1.10. The Commission is firmly of the view that upon the Act being amended in terms of the recommendations and proposals made hereinabove a scheme for compensation in respect of deceased workman which is more just, fair and equitable will emerge.