# National Insurance Co. Ltd. Division Office, Ghaziabad v. Smt. Mahendri & Anr - **Citation:** (2022) 12 ILRA 233 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-09-05 - **Case number:** First Appeal From Order No. 2995 of 2009 - **Bench:** Saral Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-division-office-ghaziabad-v-smt-mahendri-anr-48006 - **Pages:** 2 ## Headnote A. Civil Law - Civil Procedure Code, 1908 - Order II Rule 2(2), C.P.C. - Where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished - Plaintiff/husband earlier filed Suit No.1028 of 2021, u/s 9 of the Act, 1955, in which he moved an application stating that "Saptpadi" was not conducted as per Hindu rites & that he does not want to press the suit and that he shall not reinitiate any proceeding - aforesaid suit, was dismissed - Plaintiffhusband was not entitled to file a fresh ## Text 12 All. National Insurance Co. Ltd. Division Office, Ghaziabad Vs. Smt. Mahendri & Anr. 233 24. The first appeal is partly allowed to the above extent. ---------- (2022) 12 ILRA 233 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.09.2022 BEFORE THE HON'BLE SARAL SRIVASTAVA, J. First Appeal From Order No. 2995 of 2009 National Insurance Co. Ltd. Division Office, Ghaziabad ...Appellant Versus Smt. Mahendri & Anr. ...Respondents Counsel for the Appellant: Sri Anupam Shukla, Sri Ankur Mehrotra, Sri Radhey Shyam Counsel for the Respondents: Sri Chandrajeet, Sri Rakesh Tripathi, Sri Atul Kumar Sinha Civil Law - Workmen's Compensation Act 1923 - Section 2(1) (d) (iii) (d) - claim petition on behalf of married sister - Dependant - Married Sister - definition of "Dependant" covers only minor brother or unmarried sister or widowed sister if minor - Married sister is not covered under the definition as defined in Section Section 2 (1) (d) (iii) (d) of the Workmen's Compensation Act - claim petition not maintainable on behalf of the married sister of the deceased - Tribunal committed jurisdictional error in entertaining the claim petition on behalf of the married sister of the deceased - Award set aside (Para 11) Allowed. (E-5) (Delivered by Hon'ble Saral Srivastava, J.) 1. Learned counsel for the respondent is not present even in the revised call. 2. Heard learned counsel for the appellant. 3. The present appeal is directed against the judgement/award dated 06.08.2009 passed by Workmen Compensation Commissioner, Ghaziabad in WCA Case No.07 of 2008, by which the Commissioner has awarded Rs.4,48,000/- as compensation to the claimant/respondent for the death of one Gange. 4. The case of the claimant/ respondent is that she is married sister of the deceased, namely, Gange who was employed as Driver of Tata 709 HR69/4021, who died in an accident on 05.009.2007. 5. In the said case, in para-16 of the written statement, the appellant Insurance Company has stated that the claimant/ respondent being married sister of the deceased is not covered within the meaning of the word "Dependant"as defined in Section 2 (1) (d) (iii) (d) of the Workmen Compensation Act. The Commissioner did not frame any issue despite specific plea raised by the Insurance Company as to the maintainability of the claim petition filed by the claimant/respondent. 6. The appeal was entertained on the following substantial question of law:- "Whether the claimant-respondent No.1 being married sister of the deceased Gange was covered within the meaning of word "Dependant" as defined in Section 2(1) (d) of the Workmen's Compensation Act, 1923 and was entitled to claim compensation on account of the death of the said Gange?" 7. I have heard learned counsel for the appellant and perused the record. 234 INDIAN LAW REPORTS ALLAHABAD SERIES 8. To appreciate the controversy in hand, it would be relevant to reproduce Para-16 of the written statement of the Insurance Company:- 9. The judgement of the Commissioner reveals that he has considered in detail the testimony of PW1 (claimant/respondent) who has categorically stated that she is married, but she was dependant upon the deceased as she is physically disabled and her husband was also not well, due to which he was not able to look after her. 10. It is admitted on record that by the claimant that the claimant/respondent was married sister of the deceased. 11. Now coming to the definition of "Dependant" as defined in Section 2(1) (d) (iii) (d) of the Workmen's Compensation Act 1923, it is evident that definition of "Dependant" covers only minor brother or unmarried sister or widowed sister if minor. Married sister is not covered under the definition as defined in Section Section 2 (1) (d) (iii) (d) of the Workmen's Compensation Act. In such view of the fact, this Court finds substance in the argument of the learned counsel for the appellant that the claim petition was not maintainable on behalf of the married sister of the deceased and the Tribunal has committed jurisdictional error in entertaining the claim petition on behalf of the married sister of the deceased. 12. Thus, for the reasons given above, the impugned judgement/award dated 06.08.2009 passed by Workmen Compensation Commissioner, Ghaziabad is hereby set aside. Accordingly, the appeal stands allowed. 13. Consequently, the Tribunal is directed to refund the entire amount deposited by the Insurance Company under Section 30 of the Employees Workmen's Compensation Act to the Insurance Company within a period of one month from the date of production of a certified copy of this order. ---------- (2022) 12 ILRA 234 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.11.2022 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. THE HON'BLE RAJENDRA KUMAR-IV, J. First Appeal No. 830 of 2022 Ashish Morya ...Appellant Versus Smt. Anamika Dhiman ...Respondent Counsel for the Appellant: Ms. Mamta Singh, Ms. Vandana Singh Counsel for the Respondent: Sri Sumit Daga A. Civil Law - Civil Procedure Code, 1908 - Order II Rule 2(2), C.P.C. - Where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished - Plaintiff/husband earlier filed Suit No.1028 of 2021, u/s 9 of the Act, 1955, in which he moved an application stating that "Saptpadi" was not conducted as per Hindu rites & that he does not want to press the suit and that he shall not reinitiate any proceeding - aforesaid suit, was dismissed - Plaintiffhusband was not entitled to file a fresh