Gujarat High Court
Devibehn Dudhabhai vs Manager, Liberty Talkies And Anr. on 2 December, 1993
Equivalent citations: (1994)IILLJ1207GUJ
JUDGMENT J.N. Bhatt, J.
1. Whether appellant-Devibehn, widow of workman, is entitled to compensation in a claim for compensation under the Workmen's Compensation Act, 1923 ("the Act") for the fatal employment injuries sustained by her husband, Dudha Raja, and unfortunately whose case is travelling in a long legal conduit pipe for a spell of more than 11/2 decades. What a travesty of justice?
Appellant has assailed the judgement and award passed by the learned Commissioner for Workmen's Compensation at Porbandar in Workmen Compensation Case No. 17 of 1979. A short spectrum of facts leading to the rise of this appeal may be enumerated, at this juncture.
2. On March 26, 1979, deceased workman-Dudha Raja, who was working as a door-keeper in Liberty Talkies, Porbandar, sustained serious accidental injuries arising out of and in the course of his employment, culminating in his death on the next day, in hospital. The cause of injury and death was heart attack. Widow of the workman, for her and on behalf of her minor son, inter alia, contended that they are dependants of the deceased workman and that the deceased was earning monthly wages of Rs. 165/-. Therefore, the original applicants claimed an amount of Rs. 16800/- plus costs and interest from the original opponents.
3. Original opponent, inter alia contended by filing written statement, at Ext. 12, that, though the deceased workman, Dudha Raja, was employed as a workman on the date of heart attack, he was not victim of employment injury. It was also denied that, on March 26, 1979, deceased workman had sustained employment injuries in the course of employment by accident. It was also denied that, on account of such injury, on the next day, the workman died. No doubt, it was admitted that the deceased workman had expired as a result of heart attack, but it was contended that there was no nexus between the death and the employment of the workman. It was further contended that the deceased workman had died as a natural result of the disease from which he was suffering and, therefore, it could not be said that his death was caused out of and in the course of his employment. Thus, the entire claim was disputed.
4. The learned Commissioner had framed the issues arising out of the pleadings of the parties, at Ex. 16. The original applicants relied on evidence of six witnesses. The oral evidence of applicants consisted of the following six witnesses:
(1) Devibehn Dudha, original applicant, widow of the deceased.
(2) Kala Maya, Co-worker.
(3) Hemendra Ratilal, Co-worker.
(4) Dr. U.G. Nathawani.
(5) Dr. Navinchandra Joshi, Medical Officer.
(6) Dr. A. M. Ruparel.
The opponents have relied on the evidence of the following two witnesses:
(1) Prabhashanker Joshi, Manager.
(2) Gandalal Tribhovandas Thakkar, husband of opponent No. 2.
The parties have also relied on the documents to which reference would be made, as and when required, at the proper stage.
5. Upon appreciation of the facts and circumstances and evidence, the learned Commissioner dismissed the application on March 27, 1981. The learned Commissioner held that the original applicants have failed to prove that the heart attack was caused by the accident and that it is arising out of the employment. It was also found that the accident had not arisen in the course of the employment of the workman. The application for compensation came to be dismissed. Hence, the original applicants have now come up before this Court, challenging its legality and validity.
6. Firstly, the following admitted facts may be enumerated:
(1) That deceased-Dudha Raja was a workman;
(2) That he was working as a door-keeper in Liberty Talkies at Porbandar;
(3) That the deceased-workman was working for more than 14 to 15 hours a day, in the theatre;
(4) That he was earning Rs. 165/- per month;
(5) That he had suffered a heart attack when he was on duty on March 26, 1979;
(6)That the heart attack sustained by the workman, while he was on duty, resulted into his death on the next day, i.e., March 27, 1979;
(7) That the deceased-workman was suffering from tuberculosis; and (8) That the applicant-Devibhen is the widow of the deceased and minor Piyush is the son of the deceased and they are the dependants of the deceased.
7. The entire linchpin of the controversy between the parties is as to whether there was any nexus between the heart attack sustained by the deceased-workman and the employment. In other words, the main point in focus is as to whether the personal injuries sustained by the deceased was by accident arising out of and in the course of his employment. Thus, it is required to be examined as to whether the claimants are entitled to invoke the aids of the provisions of Section 3 of the Act, whereby employer could be held liable for the payment of compensation.
8. Section 3 of the Act is the most important provision in the whole scheme providing for payment of compensation by employer. The amount of compensation varies according to the nature of injury. The compensation has to be awarded in view of the scheme of the Act, depending upon the type of injury and the extent of disablement. In the event of vital injury, the dependants are entitled to claim compensation. Injury must be suffered by the workman in the course of employment which has reference to time, place and circumstances of the employment and there ought to be casual nexus between the injury and the employment. The section phrase "arising out of and in the course of employment" is understood to mean that the injury has resulted during the course of employment from, some risk incidental to the duties of the job, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In short, there must be a casual relationship between the employment and the accident or injury. If the accident had occurred on account of a risk, which is incidental to the employment, the claim 3 for compensation will succeed.
9. There has been a great deal of debate with regard to the use of the term "accident" in the phrase "personal injury by accident arising out of the employment" in Section 3. An "accident" is something which is unforeseen, and, as has been noted, the element of event being unforeseen by the injured workman forms the basis of every right of recovery. It is evident that the: word must be taken to be descriptive of the mental state of the employee at the time of the calamity. The word "accident" is used in the Act in the popular and ordinary sense of the word, as denoting for exhibiting an unlooked-for mishap or an untoward or unexpected event, which is not designed. Any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence or any un-intended and unexpected occurrence must be looked at from the workman's standpoint and whatever its cause or original, it will be accidental unless it was designed by the workman himself. The event should be unexpected in the sense that a sensible man would not have expected it from the nature of the work being done and it is not correct to ask whether a medical man knowing the condition of the workman would have expected it.
10. The important thing which requires to be noted is the language of the provisions of Section 3. It is not "personal injury by an accident", but "personal injury by accident". It shows "personal injury not by design, but by accident, by some mishap unexpected and unforeseen, accidental personal injury". It is also a settled proposition that "accident" manifests and includes any unforeseen personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence. Lord Lindley in Fenter v. Thorely & Company, (1903) AC 443, has observed "speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss". Lord Dunedin has observed that, in reference to the injury as to whether the injury "arose out of the employment", that a test which is "more directly useful to certain classes of circumstances" is this: "Was the risk one reasonably incidental to employment?" Not only that, the case is still within the definition of "accident", however, where it appears that the employee precipitated the calamity by his own act, the consequences of the act, not being foreseeable by him; or where it is shown that the injurious consequences were intended by some third person, then in such a situation also, it could be said to be an "accident"
11. While considering the ambit and scope of Section 3 of the Act, it should also be observed that the pre-existing disease and the same is accelerated on account of the work which could be said to be accidental, but death is one resulting from injury by accident. Death of a workman due to heart attack caused by strain of employment means two personal injuries and the dependants are entitled to compensation under the scheme of Section 3 of the Act. A strain or rupture resulting from over-exertion is an injury for which compensation ought to be allowed. Not only that, the cumulative effect of a number of slight injuries resulting into death or incapacity could also be said to be personal injury by accident.
12. Section 3 of the Act prescribes that the accident must arise out of and in the course of the employment of the workman. It is very well settled that the accident, in order to give rise to claim for compensation, must have some casual relationship to the workman's employment and must have occurred on account of risk which is incidental to employment. In short, in view of the relevant case law, the following material and significant principles for claiming compensation should be borne in mind:
(1) There must be a casual connection between the injury and the accident and the work done in the course of the employment;
(2) Onus is upon the applicant, to show that it was the work resulting in strain, which contributed to or aggravated the injury;
(3) It is not necessary that the workman should be actually working at the time of his death or that the death must occur while he is working or that he had ceased to work; and (4) When the evidence is balanced and, if the evidence shows the greater proposition which satisfies a reasonable amount that the work contributed to the causing of the personal injury, it would be sufficient for the workman to succeed.
13. In view of the aforesaid celebrated proposition of law and the evidence on record, the impugned judgment and award of the learned Commissioner are not only fallacious, but are also found illegal. Learned Advocate for the respondents, however, has contended that there is no evidence to show that there was a direct nexus between the death and the employment of the deceased. This contention is questioned by the learned Advocate appearing for Appellants.
14. A close look into the evidence is necessary so as to appreciate the merits of the aforesaid contention. The widow of the deceased, Devibehn, is examined at Ex. 23, who has testified that her husband was working in a theatre around 14 hours a day and night. Incident took place on March 26, 1979, at 4.30 p.m. when the deceased workman sustained chest pain and brought at the residence for treatment by one co-worker, Kala Maya. Firstly, Dr. Ruparel examined the deceased and treated him. Subsequently, under the medical advice, the deceased workman was shifted to Government Hospital. On the next day, that is March 27, 1979 the workman had passed away.
Co-worker, Kala Maya, is examined at Ex. 26. He stated in his evidence that the deceased was leaving his house for work around 9 o'clock morning and he was working in the talkie still late night, i.e. 12.30 or so, with a lunch break of one or one and a half hours.
Witness, Hemendra Ratilal Thakker, is examined at Ex. 27. He was also working in the theatre, at the relevant time, along with the deceased. He has explained the nature of duties of the deceased. According to the evidence of this witness, deceased had to wait near the door as a Door-keeer and he had to check the tickets. Thereafter, he had to lead the cinegoers to their seats. There were 10 rows with 30 seats in each row. After the starting of the cinema , the deceased had to sit on a stool, without any support, continuously. It becomes clear from the evidence of Kala Maya and this witness, H. R. Thakker, that the deceased Dudhahai was doing the work of two persons.
15. The employer relied on the evidence of Manager, Prabhashanker Joshi, at Ex. 50 and one T.T. Thakkar, at Ex. 53. The functions of a Door-keeper and the duties were performed by the deceased workman, explained by co-worker, Kala Maya and Hemendra Ratilal Thakker, came to be reinforced by the evidence of Mr. Joshi and Thakkar, witnesses of the employer.
16. In fact, according to the evidence on record, it is found that, except a lunch break of an hour, the deceased used to work almost for 15 hours a day, from 9 in the morning to 1 o'clock next day morning, including commutation period. Obviously, the learned Commissioner has failed to appreciate the fatigue and the exertion and the tear and wear suffered by the deceased for a spell of 15 years, by doing the job of two persons.
17. Dr. U.G. Nathawani is examined at Ex.33. He has stated in his evidence that the deceased was treated in an emergency and the Civil Surgeon was informed about it. On the next day, cardiogram was taken and then a conclusion was reached that there was a heart attack, like the myocardial infraction. The deceased had suffered heart attack at about 4.30 p.m. on March 26, 1979 and he passed away at about 11.15 a.m. on the next day, that is, March 27, 1979. It is clearly testified by Dr. Nathawani that, in case of weak heart, a little strain can also accelerate the death.
18. Medical Officer, Dr. Navinchandra Joshi, is examined at Ex. 46. He had conducted postmortem. According to him, the deceased workman had died because of myocardial infraction, like that of heart attack. Dr. Amratlal Ruparel is examined at Ex. 49. He has also stated that he had examined the deceased and he found that the deceased had become a victim of heart attack. He was cross-examined probably to suggest that because of his wrong treatment, the deceased suffered more. The medical evidence on record does not justify the suggestion that the deceased had suffered due to wrong treatment. On the contrary, it is evident from the evidence that the cause of death was due to myocardial infraction.
19. There was also suggestion from the employer in the medical evidence of Dr. Nathawani, at Ex. 33, that the deceased was suffering from tuberculosis. Dr. Nathawani has admitted in his evidence that, since the deceased had two conjested lungs, it was possible to hold that the deceased was suffering from tuberculosis, since long. It is also stated by him in the cross-examination that, there will be gradual effect on the heart on account of long standing tuberculosis. It appears thus that the deceased was suffering from tuberculosis. The Medical Officer, Dr.N.N. Joshi, at Ex.46, has clearly testified that myocardial infraction means heart attack and due to heart attack, there will be pain in the heart region. It is also clearly stated by him that the chest pain could be caused even by little strain or stress in such situation. It is also clearly testified by him that the Door-keeper has to check the tickets and has to lead the persons to the chair and such activities would involve strain and fatigue, and it also causes pain in the chest and it can accelerate death. A suggestion was also put to Dr. Joshi, on behalf of the employer, that a tuberculosis patient normally remains, weak and he is more susceptible to develop myocardial infraction, as sustained by the deceased. It is also admitted by him that, on account of tuberculosis and conjestion of lungs, the heart becomes weak and it is likely to develop myocardial infraction.
20. It could very well be appreciated from the medical evidence on record that the deceased had sustained myocardial infraction on account of conjested lungs and strain and exertion would accelerate and develop such a disease and it had culminated into his death. Unfortunately, this aspect is seriously overlooked by the learned Commissioner. A man, who had to work for more than 15 hours a day and that too, for a long-spell of 15 years, having tuberculosis, ought to have contributed and accelerated the emergence of myocardial infraction, which culminated into his death. In such a situation, it cannot be said that there was a natural death. The learned Commissioner has to approach and appreciate the evidence leniently and liberally. The strict principles of Evidence Act applicable to a criminal matter are not required to be employed. A reasonable inference can also be drawn arising from the circumstances. In Bai Diva Kauji v. Silver Cotton Mills Ltd., AIR 1956 Bombay 424, Chief Justice Chagla awarded compensation to a workman, who, after working for eight hours on a hot day in a mill, died by a heart failure. Chagla, C.J., speaking for the Division Bench, observed that, "there are occasions when the Court is compelled to draw inference which naturally and inevitably arises from such evidence as there is on the record. The mere paucity of evidence should not relieve the Court of its obligation to come to a conclusion on necessary and material issues." It was also observed in the said decision that, mere paucity of evidence should not relieve the Court of its obligation to come to a conclusion on vital issues.
21. Now the question which requires to be examined and adjudicated upon is as to whether the accident in question arose out of the employment, like that, whether the original applicants have successfully established the nexus between the work and the injury or the casual connection between the work and injury. The clear case of the original applicants is that the deceased workman, Dudhabhai, died of heart attack. The employer's case is that the workman died of chest pain and not of an accident arising out of and in the course of his employment. The provisions of Section 3 of the Act clearly provide that, if personal injury is caused to a workman by an accident arising out of and in the course of his employment, his employer is liable for the payment of compensation. The main ingredient of expression "accident" is unexpectedness. The second ingredient, however, has been added in any judicial pronouncements.
The injury must be traceable within reasonable limits to a definite time, place and occasion or cause. Larson in his Workmen's Compensation Law, Vol. I, while dealing with heart diseases, observed at page 548, as follows:
"In the heart cases, the issue almost from the start has centred about the question whether there was anything unusual about the exertion producing the attack or the circumstances surrounding it."
Tracing the course of the disease, Larson cited the decision in Masse v. James H. Robinson Company, 301 NY 34, where the following statement had been made-
"A heart injury such as coronary occlusion or thrombosis when brought on by over-exertion or strain in the course of daily work is compensable, though a pre-existing pathology may have been a contributing factor."
Larson concluded thus, again quoting from a Judgment:
"However, whether an event is to be found as industrial accident is not to be determined by legal definition but by common sense viewpoint of the average man. Hence, the issue almost invariably falls within the realm of fact, and if the facts and circumstances sustain, upon any reasonable hypothesis, the conclusion that an average man would view the event as accident, then the determination of the board is final. Applications of this principle, though often not expressed, are inherent in many decisions."
22. Thus, it could very well be said that accleration or aggravation of an employee's heart condition, thereby causing death or disability, may constitute a compensable injury within the meaning of the Workmen's Compensation Act. The sudden manifestation of the heart condition from the effect of strain or over-exertion at work constitutes an accidental injury within the meaning of the Act. Again, it also may be noted that, in a review of the entire relevant case law on the point, it is desirable and it would be in accordance with the general rule that the provisions of the Workmen's Compensation Act should be broadly and liberally construed, so as to advance the evident intent and purpose and not to retard them. The court should, therefore, favour adoption of liberal and lenient construction of words "by accident arising out of and in the course of his employment".
23. It would be also appropriate to refer to a decision of the Division Bench of this Court in B.M. Sodha v. Hindustan Tiles,(l966-II-LLJ-15)? in which the following principle is laid down while dealing with heart cases:
"The sudden collapse of the worker after he suffered this injury resulting in his chest pain was clearly the result of his work connected with the work he was doing. In fact, this was a clear case where the old age got coupled with the employment and, therefore, the employment was a contributory cause and the casual connection being established, the conclusion was inescapable that the accident arose out of and during the course of the employment.
Unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time, and it would also be natural to presume that, if such work involved some strain, this disease, infirmity or old age, that was existing, was likely to contribute to or accelerate the death. In such cases, the pre existing disease, infirmity or old age is the pre-espoUsing factor which will supply the necessary casual link to make this a work-connected injury, if death takes place while the workman is engaged in his normal work."
24. In the light of the facts and circumstances emerging from the record of the present case, while viewed in the background of the relevant case law, it has got to be held that, the workman-Dudhabnai died of heart, attack and there was a pre-existing disease of tuberculosis, which was accelerated and aggravated by the strain and exertion of the work, which the deceased was do ing and has culminated in his death, then the failure of heart had a direct nexus with the em ployment which the deceased was doing for more than 14 to 15 hours a day. Therefore, the injury sustained by the deceased had arisen out of and in the course of his employment with his employer and, therefore, it is compensable in accordance with the provisions of Section 3 of the Workmen's Compensation Act.
25. The reliance is placed by learned Advocate for the appellants-original claimants on a decision of this Court, rendered in Shantabehn Thakore v. New Raipur Mills Company Limited, AIR 1968 (Guj) 113. This decision fully supports the version of the claimants. It would be pertinent to refer the following important observations made by A.R. Bakshi, J., (as he then was) in that decision:
"There is thus sufficient and binding authority to hold that it is not necessary for the dependants of a deceased workman to establish that the deceased was engaged in some exceptional work of a particular kind which placed excessive strain on the deceased so as to result in his death. If the work that the workman was doing was likely to accelerate death, it could be said that the casual connection between the injury and the accident was established and the accident and the work done were in the course of employment. The contention is made, that there must be positive evidence to show that death was not caused by the disease but an excessive strain of doing a particular work in which the workman was engaged at the time of his death cannot, therefore, be accepted. The question whether the evidence in a particular case was sufficient to create the liability of the employer for compensation would no doubt depend upon the fact whether the evidence was of such tendency and probability that it would satisfy a reasonable man that the work contributed to the causing of the injury or that the workman was engaged in such activity that was likely to cause such strain and would accelerate his death. We are of the view that a pre-existing disease or infirmity would not by itself disentitle the dependants of the deceased workman from claiming compensation and that the existence of such disease or infirmity would not by itself negative the possibility of the existence' of a casual connection which is required to prove a claim for compensation. We are also of the view that unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time and that it would also be natural to presume that if such work involved some strain, the disease that was existing was likely to be aggravated provided there was some evidence to support such a finding. Further, it would not be necessary for the claimant to establish specifically that the deceased at the relevant time was working on a particular job which exercised upon him such strain that resulted in his death. The real question in such cases would be whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death."
26. Learned Advocate, Mr. Nanavati, for the respondent-employer, has placed reliance on a dicision of this Court rendered in Divisional Controller, GSRTC v. Bai Jivibehn Arjan, 21 (2) GLR 39. It was held in this case that, there must be a casual connection between the accident and the work. Sudden heart attack resulting into death without previous history cannot be said to be due to the exertion of employment. On facts and circumstances, the said decision is inapplicable to the facts of the present case. In the present case, the deceased had to work for more than 14to 15 hours a day right from early morning 9 o'clock to early morning next day, with a lunch break only. The deceased was working as a Door-keeper for a spell of more than 15 years. It is the case of the employer that the deceased was suffering from tuberculosis. The pre-existing disease of tuberculosis was sufficient to damage the heart. In such a state of healthy, if a person has to work for more than 14 to 15 hours a day, without rest except for a short break of lunch, and considering the nature of duties of the deceased, the same would obviously accelerate death on account of exertion and strain. Even a healthy man, if he works for more than 14 to 15 hours a day, without rest except for a short break of lunch, would have many physiological adverse effects.
27. It was also contended that the workman had not died in the premises and he had simply chest pain while he was working in the morning shift in the theatre. Therefore, it is contended that, death resulting due to heart attack cannot be said to be compensable. This submission: cannot be accepted. It is not mandatory that the death due to injury should result only in the factory or the industrial premises. It is also not necessary that the death should be the result of one accident. The workman may be suffering gradually due to working the employment and if the cumulative effect of slight injuries is death, then also such an injury is compensable, and is covered by provisions of Section 3. In Bunell v. Selvage, 1921 KB 355, a workgirl was incapacitated, not as the result of one accident but as the result of poisoning due to the cumulative effect of a number of cuts and scratches extending over some months of work. It was held that she had sustained personal injury by accident. Lord Buckmaster had observed in that case: "It cannot be disputed that her cut and abraised fingers were on such occasion what would be called an accident within the meaning of the statute. The only question, therefore, for consideration is whether, when the disease is due not to one specific and definite accident but to a series of accidents, each one of which is specific and as-certainable though its actual influence on the resulting illness cannot be precisely foxed, the workman is disentitled to the benefit of the statute. I cannot find any words in the statute which permit of such a construction. In the present case personal injury was suffered, it was suffered by accident, and the accident is no less accidental because it occurred on a series of occasions instead of on one." Therefore, in such a situation, the employer becomes liable to pay the compensation, as such an injury is caused to the workman by the accident which arose out of and in the course of an employment.
28. The next contention of learned Advocate Mr. Nanavati, is that, there was compromise between the employer and the heirs of the deceased employee and the claim was satisfied and, therefore, it is contended that this appeal does not survive, He has also produced withdrawal purshis purported to have been signed by the widow and the minor son of the deceased workman. As per this purshis, the appellants have stated that they are withdrawing the appeal. This submission is seriously countered by learned Advocate, Mr. Buch, for the appellants. A written reply, duly signed by the appellants, is also placed on record.
29. In reply to the alleged settlement dated October 16, 1986, produced by the respondents in this Court on November 14, 1990, it is stated that the alleged settlement was obtained by misrepresentation by the respondents. It is further contended by the widow for herself and on behalf of the minor son that the respondent had, at the time of obtaining her signature, represented to her that, the respondents were going to close down the theatre and they intended to go out of business from Porbandar and, therefore, they were prepared to pay about Rs. 5,000 to 6,000 to each and every workman of the particular talkies towards termination of their services. It was, therefore, stated by the respondent that the appellant should accept the amount on behalf of the appellant's late husband. The co-workers of the appellant's husband were also made to persuade the widow to accept the amount, saying that otherwise she will not get anything. It was offered to her towards the retrenchment compensation, by giving an understanding that the respondents were closing their business. It is specifically pleaded by the widow of the deceased workman that she was never given to understand that the said amount was offered in lieu of compensation under the Workmen's Compensation Act.
30. The alleged settlement is not supported by any affidavit. Whereas the widow of the workman has filed detailed reply to the alleged settlement, no particulars of the alleged settlement are stated by the employer. No reasonable explanation is also given as to why the alleged settlement is not brought to the notice of the Court or why it was not produced for a slong spell of five years. Considering the facts and circumstances, the version of the employer, factually, does not seem to be correct. Therefore, the contention of Mr. Nanavati in this behalf is factually found not sustainable.
31. Assuming that the said contention is factually correct, then also, the alleged settlement is legally not recognizable, in view of the provisions of Sections 8, 17 and 28 of the Act. Keeping an eye on the meaning and benevolent provision made in the interest of workmen, the Parliament, in its wisdom, has also made several safeguards against such unscrupulous, mischievous and baseless pleas of settlement with the workmen or the dependants.
32. It would be interesting, at this juncture, to refer first to the provisions of Section 8 of the Act. The provisions of Section 8 read as under:
"8. Distribution of compensation: (1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make to any dependent advances on account of compensation not exceeding an aggregate of one hundred rupees, and so much of such aggregate as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under Subsection (1) as compensation in respect of a deceased workman, the Commissioner shall deduct therefrom the actual cost of the workman's funeral expenses, or. an amount not exceeding fifty rupees and pay the same to the person by whom such expenses were incurred, and, shall, if he thinks necessary, cause notice to be published or to be served on each depandent in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under Sub-section (4), be apportioned among the dependants of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the moneys to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to arty other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, on application made to him in this behalf or otherwise, the Commisssioner is satisfied that, on acccount of neglect of children on the part of a parent or on account of the variation of circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case:
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
(9) Where the Commissioner varies any or der under Sub-section (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered in the manner hereinafter provided in Section
31."
33. The provision of this Section is mandatory and is introduced in the Act primarily to safeguard the interest of the dependants of the deceased workman. One of the reasons is that; the workman having died, living dependants, who are entitled to receive compensation, should be able to obtain their share through the Commissioner. These provisions safeguard the interest of the dependants, so that they may not fall a prey to the manipulations and mischief of the employer or to be subjected to deceit or fraud. Any payment privately made to the dependants cannot be recognised as a proper discharge of the liablity on the part of the employer to pay the compensation. The provision of Section 8 has to be followed both in letter and in sprit. Admittedly, the aforesaid provisions are not followed so far as the alleged settlement is concerned.
34. Likewise Section 17 of the Workmen's Compensation Act is very important. Section 17 reads as under:
"17. Contracting out: Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void insofar as if purports to remove or reduce the liability of any person to pay compensation under this Act."
35. It is evident from the aforesaid provisions that they provide more safeguard for the ignorant workmen who are susceptible to be induced by their employers. Section 17 protects a poor and ignorant workman, who may be induced by an employer to agree to accept less compensation or abandon something to which he is entitled under the Act. Therefore, if the employer pays suo motu any amount as ex gratia payment to the workman or to his dependants, he does so at his won peril, as he will not be entitled to get set off or deduction under Section 8 of the Act. Section 17 provides that the workman or his dependants cannot contract out of the said provision. There is a violation of the principles and the provisions of Section 17 of the Act, insofar as plea of settlement outside the court by the employer with the appellant is concerned.
36. Section 28 of the Workmen's Compensation Act provides registration of agreements compulsory. The provisions of Section 28 are also not observed. It would be interesting to refer Section 28, at this juncture:
"28. Registration of agreements: (1) Where amount of any lump sum payable as compensation has been settled by agreement, whether by way of redemption of a half-monthly payment or otherwise, or where any compensation has been so settled as being payable to a woman or a person under a legal disability, a memorandum thereof shall be sent by the employer to the Commissioner, who shall, on being satisfied as to its genuineness, record the memorandum in a register in the prescribed manner:
Provided that-
(a) no such memorandum shall be recorded before seven days after communication by the Commissioner of notice to the parties concerned;
(c) the Commissioner may at any time rectify the register;
(d) where it appears to the Commissioner that an agreement as to the payment of a lump sum whether by way of redemption of a half-
monthly payment or otherwise, or an agree ment as to the amount of compensation payable to a woman or person under a legal disability ought not to be registered by reason of the inadequacy of the sum or amount or by reason of the agreement having been ob tained by fraud or undue influence or other improper means, he may refuse to record the memorandum of the agreement and may make such order including an order as to any sum already paid under the agreement, as he thinks just in the circumstances.
(2) An agreement for the payment of compensation which has been registered under Sub-section (1) shall be enforceable under this Act notwithstanding anything contained in the Indian Contract Act, 1872 (9 of 1872) or in any other law for the time being in force."
37. The aforesaid provisions clearly go to, show that, when a memorandum of an agreement, the registration of which is required under Section 28, is not sent to the Commissioner as required by that Section, the employer shall be liable to pay the full amount of compensation, which he is liable to pay under the provisions of the Act. Notwithstanding anything contained in the provision and other provisions of the Act, unless the Commissioner otherwise directs, the employer shall not be entitled to take more than half of the amount paid to the workman by way of compensation whether in agreement or otherwise.
38. In short, it can safely be concluded that, sufficient safeguards and appropriate safety valves are designed and incorporated in the provisions of Sections 8, 17 and 28 of the Act, so as to check and frustrate manipulations of the unscrupulous employers and to protect the poor and ignorant workmen and with a view to advancing the design and desiderum of the entire scheme of the Workmen's Conversation Act. In the present case, there is a clear breach and violation of the aforesaid provisions. Therefore, factually and legally, the aforesaid contention advanced by learned Advocate, Mr. Nanavati, is without any substance and is required to be rejected.
39. Since the appellants-original applicants-dependents are found entitled to the compensation under the provisions of Section 3 of the Act, the next question there will come to fore is as to what amount they should be awarded by way of compensation. What should be the amount of compensation is provided in Section 4 of the Workmen's Compensation Act. The deceased-workman in the present case died on March 27, 1979. Therefore, the relevant provisions then applicable are required to be examined. There is no dispute about the fact that the deceased workman was earning Rs. 165/- per month as a Door-keeper at the relevant time. The conjoint reading of the provisions incorporated in Schedule IV and Section 4 of the Act will make it clear that the claimants will be entitiled to an amount of Rs. 16,800/-. As such this aspect is no longer in controversy. Considering the facts and circumstances and the salary, which was paid to the deceased workman at the relevant time, the widow and the minor are entitiled to an amount of Rs. 16,800/-.
40. It is also contended that the original applicants should be paid 50 per cent penalty of the sum of Rs. 16,800. In other words, it is contended that the applicants-claimants should be paid Rs. 8400/- and the employer should be directed to pay by way of penalty, for default. The interest is also claimed on the amount of compensation, at the rate of 6 per cent per annum on the amount due.
In this connection, the attention of the Court is invited to the provisions of Section 4-A of the Act. Section 4-A is reproduced hereunder:
"4-A. Compensation to be paid when due and penalty for default: (1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for delay, a further sum not exceeding fifty per cent, of such amount, shall be recovered from the employer by way of penalty.
41. It is proved that the employer had not deposited or paid due amount and he has committed default. It is very clear from the provisons of Section 4A of the Act that, where an employer is in default in payment of the compensation no sooner it fell due within one month thereof, the Commissioner has a jurisdiction and authority to award interest as also, in addition, levy penalty not exceeding 50 per cent of the amount of compensation. There is no reason why the powers under Section 4-A of the, Act should not be exercised while awarding the amount of compensation. This is a fit case to exercise the discretionary power in favour of the widow and the minor of the deceased workman.
42. In view of the aforesaid discussion, the original applicants- appellants herein are found entitled to an aggregate amount of Rs. 25,200/-(Rs. 16,800/- by way of compensation plus Rs. 8400/- by way of 50 per cent penalty under Section 4-A) with interest at the rate of 6 per cent per annum from the date of application till payment.
43. Having regard to the facts and circumstances emerging from the record, while viewed in the light of the relevant proposition of law, this appeal is required to be allowed with costs. In the result, the appeal is allowed. The impugned order of learned Commissioner is quashed and set aside.