Himachal Pradesh High Court
State Of Himachal Pradesh And Anr vs Guddi Devi And Ors on 6 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 201/2009 .
Reserved on: 2.8.2019
Decided on: 6.8.2019
State of Himachal Pradesh and anr. ..... Appellants
Versus
Guddi Devi and ors. .....Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 Yes For the appellants: Mr. Vinod Thakur, Addl. A.G. with Mr. Bhupinder Thakur, Ms. Svaneel Jaswal, Dy.AGs. and Mr. Ram Lal Thakur, Dy.A.G. For the respondents: None.
Tarlok Singh Chauhan, Judge The appeal has been admitted on the following substantial question of law: "Whether the Commissioner under the Workman Compensation Act was not justified to deduct the advance payment paid by the department at the time of death, 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes( ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 2 whereas such advance payment should have been deducted by the Commissioner when the final award was passed?"
.
2 However, before proceeding to determine the aforesaid question certain minimal facts need to be noticed.
3 On 1.10.2005 deceased Hem Singh was working on road near Kholighat along with other beldars. While hammering the stone, he suddenly fell down and became unconscious. He was taken to the PHC Kholighat for treatment, where he was declared dead by the Doctor. The respondents, who are the legal representatives of Hem Singh, approached the Commissioner below for grant of compensation on account of death of Hem Singh in accordance with Workmen's Compensation Act, 1923 (in short, the 'Act).
4 The notices were served upon the appellants, who, in their reply, admitted the facts of the case.
5 After recording the evidence and evaluating the same, the Commissioner below vide order dated 23.9.2008 awarded the compensation of Rs.3,73,800/ along with interest @ 12% per annum.
::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 36 The only claim putforth by the appellants is that the department had paid D.C.R.G, G.I.S., leave salary, exgratia, etc. .
of Rs.1,29,888/ to the widow of the deceased Hem Singh, therefore, this amount was liable to be deducted out of the total compensation and having failed to do so, the impugned order passed by the Commissioner below to this extent is unsustainable in law.
7I have heard the learned Additional Advocate General, appearing for the appellantsState and have also gone through the records of the case carefully.
8 Before delving into the merits of the case, certain provisions of the Act need to be noticed, which are reproduced 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 ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 4 rupees, and so much of such aggregate as does not exceed the compensation payable to that dependent shall be deducted by the Commissioner from such compensation and .
repaid to the employer.
28 Registration of agreements. (1) Where the 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 agreement as to the amount of compensation payable to a woman or a 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 obtained 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 ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 5 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.
29. Effect of failure to register agreement. Where a memorandum of any agreement the registration of which is required by 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 this Act, and notwithstanding anything contained in the proviso to sub section (1) of section 4, shall not, unless the Commissioner otherwise directs, be entitled to deduct more than half of any amount paid to the workmen by way of compensation whether under the agreement or otherwise."
9 At the outset, it needs to be observed that the issue raised in this appeal is no longer res integra in view of the judgment rendered by this Court (Coram: Justice P.D. Desai, C.J.), in Ram Dulari Kalia vs. H.P. State Electricity Board and another, 1987 ACJ 258. However, while referring to this judgment, precedents before and after this judgment also need to be noticed.
::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 610 The earliest judgment on the point is of a learned Division Bench of Calcutta High Court in K. Dias vs. H.M. Coria .
& Sons, 1951 2 LLJ 192, wherein it was observed as under: "The question before us is whether this sum can be deducted from the sum of Rs.3,500/. Section 8 Workmen's Compensation Act is as follows: "(1) No payment of compensation in respect of a workman whose injury has resulted in death, and no man 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 deceased workman, and employer make to any dependent, advance on account of compensation not exceeding an aggregate of on hundred rupees, and so much of such aggregate as does not exceed the compensation payable to that dependent shall be deducted by the commissioner from such compensation and repaid to the employer."
It is quite clear from this section that even if the sum of Rs.3,000/ had been paid to the appellant by way of compensation, that amount could not be deducted from the actual amount of compensation payable, because the section says that such payment shall not be deemed to be payment of compensation. In this case the amount was paid to the appellant not as compensation but as an exgratia payment. Therefore the observation I have made applies with greater force. This amount cannot be deducted from the ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 7 sum of Rs.3,500. If we look upon the receipt as evidencing a contract between the widow and the employer, then under S. 17 of the Workmen's Compensation Act, a workman .
cannot contract himself out. The section protects that ignorant workman who may be induced by the employer to agree to less compensation or to abandon something which under the Act he is entitled to claim. If the employer pays of his own to the workman, he does so with the risk that he will not be entitled to get setoff for the sum so paid.
Further, as a contract it should have been registered under S. 28. That has not been done. In our opinion the respondent is not entitled to get setoff for the sum of Rs.3,000 paid to the widow as aforesaid. The learned commissioner thought that there was some sort of equity in favour of the respondent and on that, he deducted this sum from the sum of Rs.3,500. We do not see how any equity arises when the sections of the Act are definite and clear. We are of the opinion that the learned commissioner was wrong in deducting the sum of Rs.3,000 from the sum of Rs.3,500. We therefore allow this appeal. There will be a decree in favor of the appellant for the sum of Rs.3,475 with costs here and below. The hearing fee of this appeal is fixed at three gold mohurs."
11 This judgment of the Calcutta High Court, in turn, was relied upon by the learned Single Judge of Gujarat High Court in the case of Chanchalben vs. Burjorji Dinshawji Sethna, 1969 2 LLJ 357.
::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 812 Thereafter, similar issue came up before this Court in Ram Dulari Kalia vs. H.P. State Electricity Board and .
another, 1987 ACJ 258, wherein contention raised by the Electricity Board was that the exgratia payment made to the claimant soon after the accident was required to be deducted, but such contention was turned by this Court by observing as under: "12. In the last place, the respondents could not be regarded as having acted bona fide in making a default in making the provisional payment or the payment of the compensation under the Act as soon as it fell due or within one month thereafter on the ground that ex gratia payment in the sum of Rs. 14,500/ had been made and employment was offered to the sister of the deceased workman. The respondents are not private employers but an agency or instrumentality of the State. They are a State enterprise which in a truly welfare State is charged with the social consciousness and responsibility towards the citizens and, more particularly, towards its employees. A public sector enterprise is expected to be a model employer and on the facts and in the circumstances of the case the respondents could not possibly have declined to accept the liability for compensation and they cannot justifiably take shelter behind the plea of entertaining a genuine belief that the factum of the ex gratia payment together with the employment of the sister of the deceased (which was a benefit computable in terms of money) would be regarded as provisional payment made under Subsection (2) of ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 9 Section 4A of the Act or as an extenuating circumstance while considering the default in making the payment due in accordance with law. A bare reading of Subsection (2) .
shows that the provisional payment is to be made in cases where the employer does not accept the liability to the extent claimed but partially accepts the same. In the present case, as earlier pointed out, the liability was not accepted in the early stages of the present proceedings precisely on the ground that such payment and employment were in lieu of the statutory compensation payable under the Act. Against the background of the aforesaid stand, it does not lie in the month of the respondents to urge that the ex gratia payment and employment were in the nature of provisional payment to the extent of the admitted liability for compensation. Besides, although the liability came to be admitted at the subsequent stage, the compensation due in accordance with law was not paid or deposited immediately and it was deposited only ten days before Commissioner's impugned decision was rendered. Under the circumstances aforementioned, can the respondents be heard to plead that the default was on account of any bona fide belief or that there are any extenuating circumstances ?
13 There are other factors and considerations as well which militate against such a plea. First, the learned Counsel for the respondents has fairly stated to the Court that the benefit of ex gratia payment is available to the heirs of an employee who dies while in service irrespective of whether the death was the result of a personal injury caused to a workman arising out of and in the course of his employment. It would thus appear that the said payment ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 10 has no nexus whatsoever with the compensation which was payable under the provisions of the Act and that it would have been made to the heir(s) of the deceased workman .
even if he had not died as a result of the injury sustained by him by accident arising out of and in the course of his employment. The circumstances that such payment was made cannot, therefore, be pressed into service and it cannot be regarded as payment of compensation under the Act or as provisional payment under Subsection (2) of Section 4A. Secondly, Section 8 prohibits the payment of compensation in respect of a workman, whose injury has resulted in death, to be made otherwise than by deposit with the Commissioner and no such payment made directly by an employer is deemed to be a payment of compensation. The respondents must be attributed the knowledge of this statutory provision and they cannot be, therefore, heard to say that the ex gratia payment of Rs. 14,500/ is the payment of compensation due under the Act or the part payment of such compensation which must enter into consideration while determining the liability, if any, arising under Subsection (3) of Section 4A. Thirdly, in para 5 of the reply submitted by the respondents before the Commissioner, there is a reference of the instructions of the respondentBoard that payment of the ex gratia payment and the employment to be offered to the legal heir(s) of the deceased workman are in lieu of the statutory compensation under the Act and that only those will be entitled to receive such benefit who have not made or are not likely to make such a claim under the Act. The resistance to the claim for compensation in the initial stages ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 11 on the strength of those instructions was wholly untenable and misconceived. The Act is a legislative enactment conformable to the Directive Principles of State policy .
enshrined in Articles 39(a), 41, 42, 43 and 46 of the Constitution. Its provisions, which are based on public policy, could not have been waived by the heir(s) of the deceased and any agreement between her/them and the respondents, which has the effect of defeating those provisions, must be regarded as void being opposed to public policy. Apart from this general principle of law, which is well established, there is in Section 17 of the Act a clear prohibition against contracting out and, accordingly, any contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment is to be treated as null and void insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. The respondents, being enlightened and resourceful employers, could not have been unaware of this settled position of law and they are wholly unjustified in pleading that they were under the genuine belief that the payment of the ex gratia amount of Rs. 14,500/ and the employment of a sister of the deceased would protect them from any claim for compensation under the Act or relieve them from the liability arising under Subsection (3) of Section 4A. Indeed, the Court would like to observe that it is high time that the respondents withdrew the instructions dated July 10, 1984 and September 4, 1984 insofar as they run counter to the injunction contained in Section 17 of the Act."
::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 1213 Similar view was taken by the learned Division Bench .
of Madhya Pradesh High Court (Gwalior Bench) in Divisional Engineer MP Electricity Board and another v. Mantobai, 1990 1 LLJ 25, wherein it was observed as under: "9. Legislature has contemplated payment of compensation by the employer suo motu and it has also specified the modes in which the payment has to be effected. In case of a workman's death, payment by way of deposit with the Commissioner is specified as a mode of payment. Section 4 speaks, "subject to the provisions of this Act the amount of compensation shall be as follows" and it enumerates in clauses (a), (b), (c) and (d) the modes of determination of compensation in different cases of injuries resulting in death and in disablements of different degrees. Reference is made in those clauses to the Schedules annexed to the Act and in the Schedules, mechanics of actual determination of the compensation is specified in clear terms. The legislature clearly intended that the injured workman, and in the case of a deceased workman, his dependants, would be provided instant succour in full measure envisaged under the Act. Who toils and sweats must share the fruit6 of his labour even when he is immobilised and his dependants must be cared for when he has perished. But for him, there would be no national prosperity. This intention of the legislature conforms to the constitutional imperatives underwritten in Articles 41, 42 and 43 of the basic statute ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 13 of our country. This court had an occasion to interpret the provisions of Sections 3 and 4A of the Act in the case of Om Prakash V/s. Ramkali,1987 ACJ 803, when it was held .
that the 'compensation' payable under the Act falls due as soon as the 'accident' takes place and, therefore, it was statutory obligation of the employer to make payment thereof in accordance with the provisions of the Act and his breach of duty in that regard would also visit him with the 'penalty and interest' as statutorily contemplated under subsection (3) of Section 4A.
10. What only remains to be referred are Sections 28 and 29 to say that the provisions thereof equally support our view that there is an absolute statutory bar underwritten in Section 8 against any payment to be made 'directly' by an employer against any amount due payable as 'compensation' under the Act. In a case where a claim is not lodged in accordance with the provisions of Section 22 of the Act, in the event of neglect by the employer to act suo motu in the matter of payment of compensation, it is contemplated under Section 28 that parties may settle up the question of compensation by an 'agreement'. The Act vests power in the Commissioner even to refuse to register such an agreement in case he thinks that the agreement was obtained by fraud or undue influence and he is further empowered under proviso (d) of Section 28(1) to make any order "he thinks just in the circumstances" in respect of any sum already paid under the agreement. Section 29 envisages that when any agreement required to be registered under Section 28 is not so registered, then the employer shall be liable to pay full compensation in accordance with the provisions of Section 4 ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 14 and unless the Commissioner otherwise directs, the employer shall not be entitled to deduct more than half of the amount already paid to the workman by way of .
compensation under the agreement or otherwise. Let it however be noted that deduction envisaged under Section 29 is evidently referable to a case of compensation to a 'workman' who is alive and is only injured.
11. We may now refer to the authorities cited to submit that other courts have taken a view contrary to what this court had expressed in Usha Bai's case . A division Bench in the case of Kathleen Dias V/s. H. M. Coria & Sons, 1951 AIR(Cal) 513, construed Section 8 of the Act to hold that no deduction on account of an ex gratia payment is permissible "because the section says that such payment shall not be deemed to be payment of compensation". We are also in respectful agreement with the view expressed by the Calcutta High Court that equity has not place in a statutory provision and that no equity can be read in Section 8 in favour of the employer so as to entitle him to make or seek deduction of any kind of payment made by him. The same view prevailed with a learned single Judge of the Gujarat High Court in the case of Chanchalben V/s. Burjorji Dinshawji Sethna, 1969 2 LLJ 357. He referred to and relied on the decision in Kathleen's case, . In the case of Ram Dulari Kalia V/s. H. P. State Electricity Board, 1987 ACJ 258, P. D. Desai, C. J. of Himachal Pradesh High Court, also reached the same conclusion in a similar case of a deceased employee of Electricity Board of that State holding that the ex gratia payment to the claimant made soon after the accident had no nexus whatsoever to the compensation ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 15 which was payable under the provisions of the Act because that ex gratia payment would have been made even if the deceased had not met with the accident.
.
12. In the the instant case, it appears from Exh.P6 that on February 6, 1985, an order was made sanctioning "grant of ex gratia payment of Rs.2,500/ to the deceased workman's widow", namely, the respondent, on account of her husband's death. Reference in the order is made to Board's Notification which, counsel for the appellants submits, conforms to the decision of the State Government projected in Memorandum No.2355IVRII72, dated November 14, 1972, included in the Compilation of Regulations and Standing Orders in Establishment Matters of M. P. Electricity Board. At page 76 of Part XXXIIA of the said Compilation, the Memorandum aforesaid is reproduced of which we extract the opening paragraph:
"While considering the report of the Madhya Pradesh Pay Commission, 1972, Government felt that for mitigating the hardship and suffering caused to the family of a Government servant who dies while in service, a substantial ex gratia payment should be made to the dependants of the deceased. To implement this decision, the following order are passed...."
It is clear that as in the case of Ram Dulari Kalia V/s. H. P. State Electricity Board , the ex gratia payment is similarly contemplated in this case also to dependants of a deceased employee without any reference to the cause of his death and it is meant for "mitigating the hardship and suffering caused to the family" of a person employed by the Board.
::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 1613. Whatever may be the view held by the Himachal Pradesh High Court, we do not feel disposed to take a narrow view of the provisions of Section 8 of the W. C. Act.
.
On the other hand, we are inclined to agree with the Calcutta High Court, albeit for the reasons we have given above, that there is a total bar to be read in Section 8 against any deduction to be made by the employer or by the court for any payment made by the employer out of court, under any circumstance, so as to reduce the corpus of the compensation determined by the Act itself, i.e., payable in case of death of a workman. We have no doubt that a case of death and a case of an injury only are not treated on the same footing by the legislature and that Section 8 deals specifically with a case of death and there is no scope thereunder for any employer to make any payment 'directly', for whatsoever reason, for which he would be able to claim deduction when he has deposited the compensation suo motu or even when awarded against him by the Commissioner or this court in appeal.
14. We would, therefore, answer in the negative, the question referred to us. We hold that neither the Workman's Compensation Commissioner nor this court, in appeal, has any jurisdiction to give any credit for any 'direct' payment of any nature made to deceased workman's dependants, including any payment in the nature of ex gratia compensation, whether made under any other statutory provision or under contract. We further hold that the compensation which is determined payable to the workman under the Act is not reducible on account of such payment though 'deduction' or 'repayment' contemplated statutorily ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 17 under Section 8 only, can be made. We also hold, therefore, that law was not correctly stated in Usha Bai's case, wherein a contrary view was taken. "
.
14 In Naseera Nazir & Others v. Executive Engineer, 1999 3 LLJ 1122, Jammu & Kashmir High Court observed as under:
"11. Workman's Compensation Act is a welfare legislation and has been enacted only to see that the workmen are being paid compensation for the injury or the accident which they have suffered in discharge or their duties of their master and it is the Central Workmen's Compensation Act, 1923 which is applicable to the State of Jammu and Kashmir. The Act provides that the compensation to be paid and deposited not directly to the workman or his depandent, but it is to be deposited with the Commissioner and the Commissioner has to ensure that the amount has been disbursed between rightful claimants. This has only been done in order to ensure that the employer does not show a fictitious receipt or an instrument to evidence that the compensation has been made or paid by him to the workman or to the next of the kin by him outside the court. So the compensation shall be made not otherwise than by deposit with the Commissioner and no such payment which has been made directly by the employer shall be deemed to be a payment of compensation.
12. Procedure further provides under subsection (4) of Section 8 of the Act that on the deposit of any money under ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 18 subsection (1) as compensation in respect of deceased workman, the Commissioner, if he thinks necessary, cause notice to be published or to be served to each dependent in .
such manner as he thinks fit, calling upon the dependents 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 dependent 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 disbursement made.
13. It is further stipulated that the compensation deposited in respect of the deceased workman shall be subject to any deductions made under subsection (4), be apportioned among the dependents 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 of dependents.
14. SubSection (1) of Section 8 of the Act further stipulates that where any lumpsum 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 workman, 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 legal 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 dependent of the workman or to any other ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 19 person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
15. So the provisions of Section 8 incorporated in the Act are .
designed to protect the heirs and legal representatives of the deceased workman against any kind of exploitation or fraud likely to be practised on them by or on behalf of the employer or any third party.
16. It may also be noted that neither Workmen's Compensation Commissionnor the appellate Courts have any jurisdiction to give any credit for any payment of any nature made to the deceased's dependents including any payment in the nature of exgratia compensation either made under any statutory provision or under a contract. So the contention of the respondents that they have made ex gratia payment and also employed one of the sons of the deceased workman on compassionate grounds will not absolve them of the liability under the Workmen's Compensation Act and law. So the compensation awarded by the Commissioner under the Workmen's Compensation Act including penalty imposed on the nonapplicant for non payments recoverable and payable through Commissioner under the Workmen's Compensation Act to the next of kin of the deceased and the discretion lies with the Commissioner in exercise of the powers vested in him under the provisions of Order 23 of Civil P. C. If the Commissioner feels and is of the considered opinion that the compensation is being relinquished against the provisions of the Act, he is to ensure that all such agreements and all such contracts are uncognizable at law and are not to be given any recognition and are ab initio bad. He has not to go through any ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 20 agreement or consider the same which has been entered into verbally or in writing by the next of kin of the deceased with the employer and is to assure that the agreement .
having been obtained by fraud or undue influence or through improper means is not taken on record and given any credence."
15 Similar issue came up before the Kerala High Court in Shan vs. Rajankutty, 2005 3 KerLT 1014, wherein D1 and it was held as under::
r to adjustment was sought for an amount paid under the agreement "6. Finally, it was argued that Rs. 7,000/ was paid by Ext.D1 agreement and that has to be deducted from the compensation awarded. Ext.D1 agreement is not a registered agreement under S.28. Direct payment of compensation is possible by executing agreement except in case of death as contained under Section 8 (1). Even for such cases, failure to register the agreement is fatal in view of S.29. In Kathleen Dias v. H.M.Coria & Sons, 1951 2 LLJ 192 Calcutta High Court held that if an employer pays the dependents exgratia under an agreement which is not registered under S.28, he is not entitled to deduct the same amount from the actual amount of compensation. Same view was taken by Gujarat High Court in Bhai Chanchalben v. Burjorji Dinshawji Sethna, 1969 2 LLJ 357 . In the Workmen's Compensation Act for death, compensation has to be deposited under the Act. The amount paid for funeral expenses, immediate medical treatment etc. cannot be ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 21 treated as a compensation under the Workmen's Compensation Act especially in the case of death. S.8 (1) of the Act deals with distribution of compensation in the case .
of death".
16 Similar reiteration of law can be found in the judgment of learned Single Judge of Gujarat High Court in Jamnagar Municipal Corporation vs. Rajesh Laljibhai Kabira, 2010 (125) FLR 997 and in the judgment of learned Division Bench of Kerala High Court in Secretary, Kerala State Electricity Board vs. Neeli, w/o Thekkeppat Velayudhan, 2014 Lawsuit (Ker) 1790.
17 Thus, what can be deduced from the aforesaid exposition of law is that neither the Workmen's Compensation Commissioner nor this Court, in appeal, has any jurisdiction to give any credit for any 'direct' payment of any nature made to deceased workman's dependents, including any payment in the nature of exgratia compensation, whether made under any statutory provision or under any contract. Further, if an employer pays dependents exgratia, under an agreement, which is not registered, even then the same is not liable to be deducted from actual amount of compensation. The provisions of Section 8(1) ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP 22 read with Section 28 and 29 of the Act prevent the Workmen's Compensation Commissioner for making any adjustment of such .
payment.
Accordingly, substantial question of law is answered against the appellants.
18 In view of the aforesaid discussion, I find no merit in this appeal and the same is according dismissed so also the costs.
r to pending application(s), if any, leaving the parties to bear their own 6.8.2019 (Tarlok Singh Chauhan) (pankaj) Judge ::: Downloaded on - 29/09/2019 01:50:00 :::HCHP