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COURT OF APPEAL
L. H. DE ALWIS. J. AND H. A. G. DE SILVA, J.
C. A. 4/79.
W.C. CASE No. 03/P65/77BRA/369.
26 AND 27 JANUARY 1983.
Power of Attorney — Workmen's Compensation — Application by dependants ofdeceased workman through attorney — Is Commissioner a civil court ? —Validity of power of attorney — Order appointing legal representative over minor— Regulation 12 of Regulations made by Minister.
The workman M. P. Piyadasa de Silva died in a motor accident. P. B.Sumanawathie was his mistress she being married to one Ackman. Piyadasa had3 children by Sumanawathie viz Gamini Jayarama, Lakshman Jayarama andPriyanthie Jayarama. Albert de Silva was Sumanawathie's father. Jane nona wasthe deceased workman Piyadasa's mother and Padmawathie was his sister. Theapplication for Workmen's Compensation 'was made by Ariyadasa de Silva, abrother of the deceased workman claiming to represent the abovenamedpersons on a power of attorney executed in his favour by them.
The power of attorney must be construed strictly. The power was a generalone but did not provide Ariyadasa with authority specifically to instituteproceedings in the Workmen's Compensation Tribunal. Hence the power ofattorney did not empower Ariyadasa to claim compensation on behalf of thedependants in proceedings before the Commissioner of Workmen'sCompensation.
The Commissioner is not a civil court though some powers of a Civil Courtare conferred on him.
One of the executants of the power was Priyanthie a minor 9 years old andshe could not have executed a Power of Attorney.
The Commissioner appointed Sumanawathie as legal representative of theminor Priyanthie. This was valid though done after proceedings wereinstituted.
Sumanawathie was only the mistress of the deceased workman and shewas in fact married to one Ackman. The children born to Sumanawathie willbe presumed to be children born of lawful wedlock. Hence it was wrong to
Charlis Silva v. Ariyadasa (H. A G. de Silva. J.)
hold that Priyanthie was an illegitimate child of the deceased workman and shedid not come within the definition of dependant of the deceased workman.
Cases referred to:
1. Bastian Pillai v. Anna Fernando 54 NLR >132 Clarice Fonseka v. WinifredPerera 59 NLR 364
APPEAL from order of the Commissioner of Workmen's Compensation.
H. W. Jayewardene, Q.C. with N. Ft. M. Daluwatte and C. R. de Alwis forrespondent-appellant.
K. Shanmugalingam for applicant-respondent.
Cur. adv. vult
March 11. 1983H. A. G. DE SILVA. J.
This is an appeal from the Order of the Deputy Commissionerof Workmen's Compensation directing that the Respondent-Appellant deposit a sum of Rs. 11,200/- as compensation and afurther sum of Rs. 315/- as costs.
The Applicant-Respondent had instituted an application beforethe Commissioner of Workmen's Compensation forcompensation on behalf of the dependants of one M. P. Piyadasade Silva, the deceased workman. The application alleged that thedependants of the deceased workman were his widow P. B.Sumanawathie de Silva, his three children M. P. Gamini Jayarama,M. P. Lakshman Jayarama. M. P. Priyanthie Jayarama, B. P. Albertde Silva, the father of M. P. Sumanawathie de Silva, W. A. JaneNona the mother of the deceased workman and Padmawathie hissister.
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At the inquiry the following facts were admitted by theAppellant-Respondent
that the deceased was a workman within the meaning ofthe Ordinance;
that the monthly salary of the deceased was Rs. 400/-
that the deceased suffered personal injury in a motor caraccident on 5.4.1977 and died on the same day.
The case went to inquiry on the following issues
Is the Applicant entitled in law to claim compensation fromthe Respondent Company on behalf of the dependants ofthe deceased M. P. Piyadasa?
Are there dependants of the deceased ?
Did the death of the deceased on 5.4.77 result from anaccident arising out of and in the course of hisemployment under the Respondent Company?
The Deputy Commissioner who held the inquiry answered allthree issues in the affirmative and with regard to the secondissue further held that the dependants were (a) M. P. PriyanthieJayarama — the illegitimate minor daughter of the deceased and
W. Jane Nona — the widowed mother of the deceased and (c)Padmawathie. the unmarried sister of the deceased. He furtherordered that compensation in a sum of Rs. 11,200/- bedeposited with the Commissioner of Workmen's Compensationand awarded Rs. 31 5/- as costs of the inquiry.
The application to the Commissioner of Workmen'sCompensation was made by one M. P. Ariyadasa de Silva, said tobe a brother of the deceased workman, for and on behalf of thealleged dependants.
Section 3 of the Workmen's Compensation Ordinance (Cap:139), hereafter referred to as the Ordinance, deals with the
Charlis Silva v. Ariyadasa (H. A. G. de Silva. J.)
employer's liability to pay compensation for personal injurysuffered by a workman. Section 6 deals with the amount of suchcompensation while Section 10 enumerates the persons entitledto compensation. Section 16 lays down the procedures forrecovery of compensation, the required notice and the claim.Part VII of the Ordinance relates to the proceedings before theCommissioner in regard to claims for compensation. Section 36of the Ordinance states that —
"Any appearance, application or act required to be madeor done by any person before or to a Commissioner (otherthan an appearance of a party which is required for thepurpose of his examination as a witness) may be made ordone on behalf of such person by a legal practitioner or bya representative authorized in writing by such person andapproved by the Commissioner."
The Applicant M. P. Ariyadasa de Silva filed this application onthe strength of a Power of Attorney granted to him by the allegeddependants of the deceased workman. This Power of Attorneywhich was produced marked "A2" is a general Power of Attorneyand learned Counsel for the Appellant submits it does notauthorize him to make this application before the Commissioner.
A perusal of "A2" shows that the recital which states thespecific matters for which the Power of Attorney has beenexecuted is to "manage and transact all our business and affairsin the said Sri Lanka". It is contended that the words "affairs" inthe recital must be construed ‘eiusdem generis' with the words"business" and would not cover the making of an application tothe Commissioner of Workmen's Compensation for and onbehalf of the executants. The general powers recited in the bodyof 'A2', takes in the gamut of all types of business and financialactivity that an individual may indulge in and in particular "to ask.demand, sue for, recover and receive of, and from all persons
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liable now or hereafter to pay …. all sums and sums of money,debts, legacies …. whatsoever now owing, payable orbelonging or which shall or may at any time hereafter be due,owing and payable coming or belonging to us and on paymentor delivery hereof to give, sign and execute release, receipts andother discharges for the same respectively …. and on non-payment or non-delivery thereof or any part thereof, tocommence, carry on and prosecute any action or actions, suit orsuits or other proceedings whatsoever before any Court orCourts in the said Island for receiving and compelling thepayment or delivery thereof" ; — "to compromise disputes anydifference and to refer matters to arbitrators and sign andexecute all necessary bonds submissions and references thereforand to enforce any award"; — "to appear for us before any Courtor Courts in Sri Lanka either as Plaintiff, Defendant orintervenient and to sign and grant all necessary proxy or proxiesto any Attorneys-at-Law of the said Courts."
In Bastian Pillai v. Anna Fernando (1) — it was held that "aPow.er of Attorney must be construed strictly and that the specialterms in the recitals controlled the general words in the operativepart".
Further learned Counsel for the Appellant submitted that in anyevent, the Commissioner of Workmen's Compensation is not a"Court". Section 35 of the Ordinance deals with the powers ofthe Commissioner and states that "A Commissioner shall have allthe powers of a civil Court under the Civil Procedure Code, forthe purpose of taking evidence on oath (which suchCommissioner is hereby empowered to impose) and of enforcingthe attendance of witnesses and compelling the production ofdocuments and material objects; and a Commissioner shall bedeemed to be a Civil Court for all the purposes of Section 417and Chapter XXXIV of the Criminal Procedure Code1'.
Section 5 of the Civil Procedure Code states that "Civil Courts"means a Court in which a Civil action may be proved and defines"Court" as meaning a Judge empowered by law to act judiciallyalone, or a body of Judges empowered by law to act judicially asa body, when such Judge or body of Judges is acting judicially.
Charhs Silva v. Ariyadasa (H. A. G. de Silva, J.)
The word 'Judge' has been defined to mean the presidingofficer of a Court, and includes Judges of the Supreme Court,District Court etc.
A construction of Section'35 of the Ordinance shows that,prima facie a Commissioner is not a "Civil Court" but has thepowers of a Civil Court for certain purposes. The section in itslatter portion deems a Commissioner to be a Civil Court forpurposes of Section 147 of the Civil Procedure Code, for the trialof issues of law first and. Chapter XXXIV of the CriminalProcedure Code which deals with proceedings in cases ofcertain offences affecting the administration of justice.
Learned Counsel for the Respondent contended that underSection 54 (2) (f) of the Ordinance which empowered theMinister to make regulation in respect of or all or any of thefollowing matters namely :—(f) "for representation in
proceedings before Commissioners of parties who are minors orunable to make an appearance", regulation 30 (published inSubsidiary Legislation of Ceylon Vol: II (1956) makes theprovisions of Chapters VII, VIII, IX, XIII, XVI, XVII. XVIII. and XXVIof the Civil Procedure Code applicable to proceedings before theCommissioner. While these Chapters deal with matters such asMode of Institution of Action ; the Issue and Service of Summons ;Appearance and Answer ; Consequences and Cure (whenpermissible) of Default in Appearing or Pleading ; Discovery,Inspection, Production, Impounding and Return of Documents;Witness ; Adjournments ; Withdrawal and Adjustment of Actions ;Chapter V dealing with recognized Agents and Proctors is notincluded.
In my view a strict construction of the Power of Attorney A2,did not empower the applicant to make the application beforethe Commissioner of Workmen's Compensation for and onbehalf of the alleged dependants.
Further one of the alleged dependants viz; M. P. PriyanthieJayarama who is one of the executants of the Power of AttorneyA2 was a minor on 27th February 1978 the day on which A2 was
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executed. According to the extract of birth register A, she wasborn on 15.01.1969 i.e. she was only nine years of age and assuch she could not have executed the Power of Attorney A2. ThePower of Attorney purported to have been granted by PriyanthieJayarama to the applicant would be invalid.
The next submission of learned Counsel for the Appellant wasthat M.P. Sumanawathie de Silva, the mother was appointed bythe Deputy Commissioner as legal representative on 13.02.1979during the course of the proceedings and long after theapplication for compensation had been filed by the Applicant. Itwas his contention that the appointment of the legalrepresentative for the minor Priyanthie Jayarama should havepreceded the filing of the application.
Regulation 36 states that — "where any party to a proceedingsis under the age of 1 5 years, the Commissioner shall appointsome suitable person, who consents to the appointment, torepresent such party for the purposes of the proceedings".
There is nothing in this regulation which limits theappointment of a representative for a party under 15 years ofage, to a stage before the application is made. On the other handthe fact that the word used is "proceedings" would indicate thatthe proper time for the appointment of a representative is afterthe application has been filed and at any time before theconclusion of the inquiry. It seems to me therefore that theappointment of Sumanawathie de Silva as the legalrepresentative for Priyanthie Jayarama is valid.
The last matter that was raised by learned Counsel for theAppellant is that the Deputy Commissioner was wrong in holdingthat Priyanthie was the illegitimate child of the deceasedworkman.
Learned Counsel submitted that as Sumanawathie de Silva wasmarried to one Gardige Punchi Hewage Ackman Silva and hadnot obtained a divorce from him. she should not be permitted tobasterdize her own child. He referred to the presumption under
Charhs Silva v. Anyadasa (H. A. G. de Silva. J.)
Section 11 2 of the Evidence Ordinance which states that —
"the fact that any person was born during the continuance
of a valid marriage between his mother and any man
the mother remaining unmarried shall be conclusive proofthat such person is the legitimate son of that man. unless itcan be shown that that man had no access to the motherat any time when such person could have been begottenor that he was impotent".
According to Sumanawathie's evidence she did not knowwhere Ackman Silva was. She had been living with the deceasedworkman as husband and wife since 1948 and she has hadnothing to do with her legal husband since 1948. They lived indifferent places and Ackman Silva has grown up children bysomeone else.
Learned Counsel cited the case of Clarice Fonseka v. WinifredPerera (2) which held inter alia that —
"the presumption arising under Section 112 of theEvidence Ordinance of the legitimacy of a child born inlawful wedlock can be rebutted only by such evidence asexcludes any reasonable doubt, and that entries in thebirth register were not per se sufficient to rebut thepresumption".
It further held that entries in a Birth Certificate are only primafacie evidence of date of birth, place of birth and the identity ofthe person registering the birth.
Though the extract of the birth register A1 gives the name ofthe father of Priyanthie Jayarama as that of the deceasedworkman, no evidence of non-access or impotency of the legalhusband of Sumanawathie has been led to rebut thepresumption of the legitimacy of Priyanthie Jayarama who hasbeen born during the subsistence of the marriage of her motherwith Ackman Silva. It would therefore appear that PriyanthieJayarama cannot be regarded as the illegitimate daughter of thedeceased workman and hence is not a dependant coming withinthe definition of "dependant" in Section 2 of the Ordinance.
For the reasons I have given in my judgment the Appellant isentitled to succeed and I therefore allow the appeal and set aside
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The Order of the Deputy Commissioner. The Appellant will beentitled to costs of this appeal fixed at Rs. 525/- as well as thecosts of inquiry before the Deputy Commissioner.
L.H. DEALWISJ – 1 agree
CHARLIS SILVA v. ARIYADASA