Kerala High Court
Commissioner For Workmen'S ... vs P.V. Mohanan And Ors. on 15 January, 1988
Equivalent citations: II(1989)ACC158, (1988)IILLJ177KER
JUDGMENT V. Bhaskaran Nambiar, J.
1. The Commissioner for Workmen's Compensation, Kottayam, has referred the following question of law for the decision of this Court under Section 27 of the Workmen's Compensation Act:
Whether the compensation amount deposited with the Commissioner for Workmen's Compensation becomes the property of the sole dependent of the deceased workman in case nobody opposes to that, and further, if that sole dependant dies prior to the allotment of that compensation whether the said amount devolves to his or her heirs?
2. Gopalan, a workman, died on 22nd February 1986 by accident arising out of and in the course of his employment in a tea estate. The employer accepted the liability for compensation and deposited the compensation amount of Rs. 21,000 with the Commissioner for Workmen's Compensation. He also submitted a statement in Form A showing that Thankamma, the widow, was the sole dependant of the deceased workman. Before the amount could be paid to her, she died on 20th November 1986. In January 1987, Mohanan, a son of the deceased, Thankamma, claimed the amount on the strength of a succession certificate issued by the Administrator General in respect of the estate of Thankamma. Objections to the claim were invited by necessary publication. There was no objection from any quarter. But the Commissioner entertained some doubts as to whether the amount could be disbursed to the heir of the dependant of the deceased workman. The deceased workman had only one heir, his widow, dependent on him when he died. That sole dependent was entitled to the compensation amount. If the amount due to that dependent cannot be disbursed to the heirs, on her death, the amount naturally will have to be returned to the employer. A jurisdictional issue of the Commissioner to order payment in such cases arises for determination. The question of law formulated by the Commissioner was, therefore, referred to this Court under Section 27 of the Act.
3. Section 3 of the Act imposes a statutory liability on the employer to pay compensation in accordance with the provisions of the Act, to workmen who suffer personal injury by accident arising out of and in the course of employment. The amount of compensation is also fixed under the Act and Section 4A insists that "compensation under Section 4 shall be paid as soon as it falls due". Where the injury results in death, the compensation payable under the Act to the dependants of the deceased workman cannot be paid direct to them by the employer; the amount has to be deposited with the Commissioner. The Commissioner, after due notice and conducting the necessary enquiries, can direct apportionment of the amount payable among the dependents of the deceased workman or any of them in such proportion as the Commissioner thinks fit or may, in his discretion, be allotted to any one of the dependants.
4. The answer to the question depends on a correct understanding of the scheme of the Act and the limited jurisdiction conferred on the Commissioner.
5. The right to compensation under the Act arises when a workman is injured by accident arising out of and in the course of his employment. The injury may result in death. Therefore, the liability to pay compensation is fastened immediately when the workman is injured or when he dies. The liability is not postponed because the payment is delayed. The right to receive compensation, frozen on the date of injury or death has to be worked out under the Act.
6. In the event of the death of the workman, the compensation is payable to his dependents, defined in Section 2(d) of the Act. If no dependants exist, the Commissioner is bound to direct the return of the compensation deposited to the employer. If there is more than one dependant, it is the Commissioner who has the discretion to apportion the compensation in such proportion as he deems fit and he has also the discreton to choose only one of those dependants for paying the entire compensation.
7. The compensation payable under the Act cannot be assigned or charged or be liable to attachment. It cannot pass to any person other than the workman by operation of law. No claim for set off can be made against this amount. The Act, therefore, clearly intends, under Section 9, that compensation amount should reach the concerned workman or his dependants. As the workman or his dependant cannot assign this right, this amount is beyond the reach of their creditors and it cannot be deprived by the operation of any law. The Act is not concerned as to what happens when the amount reaches the hands of the workman or his dependants. No workman can relinquish his right to compensation under the Act and any contract or agreement purporting to remove or reduce the liability of any person to pay compensation under the Act is null and void. The liability of the employer to pay compensation is a first charge on his assets.
8. The jurisdiction of the Commissioner is, therefore, only to decide about the dependant who is entitled to the compensation on the date of death of the workman. When once that decision is made, he has discharged his duty under the Act and payment has to be ordered by him.
9. When, therefore, there was a dependant alive on the date of the death of the workman, entitled to receive the compensation, there is no jurisdiction for the Commissioner to return the amount to the employer. The employer's right to return of the compensation amount arises only when there is no dependant competent and entitled to receive the same. If that dependant, to whom payment had to be made under the Act, dies before the amount was paid, it is not the province of the Commissioner to decide about the heirs of the dependants to whom the compensation is to be paid. It is a question normally to be decided in the appropriate forum under the general law. The Commissioner under the Act, is a creature of the statute whose powers are strictly circum-sribed by the provisions of the Act and the Rules. When the Act and the rules have not conferred on him any right to settle the dispute, if any, between the heirs of the dependant of a workman, it is difficult to clothe him with such power on a complicated issue of a civil nature as incidental to his right to direct payment to the dependant.
10. It is not as if the Commissioner is bound to retain the amount till a declaration is made by any court about the persons who are legally entitled to receive the compensation amount as heirs of the dependant. The Commissioner can disburse the amount to the person who produces a succession certificate issued by the appropriate authority. In that case, both under Section 381 of the Indian Succession Act and Section 35 of the Administrators General Act, the payment made by the Commissioner to the holder of the succession certificate is legal discharge and affords full indemnity, as the succession certificate is "conclusive as to the representative title against all debtors of the deceased"
11. With these provisions of the Act, it seems to us to follow as an irresistible conclusion that the Commissioner cannot refund the compensation to the employer when the dependant entitled to the compensation dies, but is bound to pay the same to the heirs who produce a succession certificate or any direction or order of a competent court.
12. We, therefore, agree with the reasoning and conclusion of the Madras High Court in Abdurahiman v. Beeran Koya (AIR) 1938 Mad 402, of the Bombay High Court in Santoline Fernandes v. M. Mackenzie and Co. 1968 II LLJ 189, and Manubhai K. and Co. v. Babajee 1970 II LLJ 334, of the Calcutta High Court in Pasupati Dutt v. Kelvin Jute Mills (AIR) 1937 Cal. 495, of the Madhya Pradesh High Court in Reference under Section 27, Workmen's Compensation Act, 1923, (1980) MPLJ 261, and of the Andhra Pradesh High Court in Radhakrishna Rice Mills v. Appalacharyulu 1958 I LLJ 746 and of the Karnataka High Court in Kaveri Structural v. Bhagyam 1977 II LLJ 529.
13. We are also in entire agreement with the decision of this Court in Rani v. Deputy Labour Commissioner (1985) KLT 121, where it is held that the right to compensation arises immediately on the death of the workman.
14. The earlier decision of the Madras High Court in Abdurahiman v. Beeran Koya, (supra), was overruled by that court in B.M. Habeebullah v. Periaswami 1977 II LLJ 322. With respect, we cannot, for reasons already stated, agree with that view and the same has been rightly dissented from by the Madhya Pradesh High Court in Reference under Section 27, Workmen's Compensation Act, 1923, (supra).
15. The Full Bench decision of the Madras High Court (supra), the lone dissenting view on this aspect, stressed on Section 9 of the Act under which the compensation amount cannot pass to any person other than the workman by operation of law. The workman, as per the definition, includes dependants. This Section itself insists that it shall pass only to the workman including his dependants. No other person is entitled to the amount. When once the dependant entitled to the compensation is known, and his right to receive the same is settled by the Commissioner, there is no violation of the provision, if, after the death of the dependant, the amount is given to the heirs of the dependant. Section 9 and Section 8 have to be read together so that under the Act there cannot be any direct payment to the dependant of the workman when the workman dies and the Commissioner alone is empowered to direct payment to the dependant, and the amount cannot be claimed by any person other than that dependant, by the operation of any law. No law can prejudicially affect the dependant's right to receive the compensation when once the Commissioner decides his right to receive same. We are, therefore, not in agreement, with great respect, to the learned judges of the Madras High Court, and with their reasoning in the Full Bench ruling in B.M. Habeebullah Maricar v. Periaswami (supra).
16. We will, therefore, answer the question referred to us thus:
When the compensation amount deposited with the Commissioner for Workmen's Compensation becomes the property of the sole dependant of the deceased workman, and if that sole dependant dies prior to the allotment of that compensation, the said amount would devolve on the heirs of the dependant and not on the heirs of the deceased workman, whether there is opposition or not.
17. We answer the reference accordingly. We pass no order as to costs.
18. As the employer did not enter appearance, we requested Shri S.A. Nagendran to assist us as amicus curiae. We record our entire satisfaction for the thorough preparation and to the valuable assistance rendered both by Shri S.A. Nagendran as amicus curiae and by Shri Siby Mathew as counsel for Shri Mohanan, the heir of the dependant, who is the first respondent.
19. A copy of this order under the seal of the High Court and the signature of the Registrar shall be forwarded to the Commissioner for Workmen's Compensation, Kottayam.