The Secretary, Kerala State Electricity Board vs Neeli

T.R. Ramachandran Nair, J.—The appeal is filed by the Kerala State Electricity Board raising a short point. It is a case where Workmen''s Compensation Commissioner ordered to deposit a sum of Rs. 3,89,280/- as compensation determined and payable under Section 4 of the Act to the claimant viz., the mother of one T.V. Mony, who while working on 23.3.2007 on the L.T. line sustained electric shock and fell down and died.

Standing counsel for the Electricity Board submitted that an amount of Rs. 45,000/- was paid under receipt to the mother and the rest of the amount was deposited by the Board before the Workmen''s Compensation Commissioner after quantifying the same as per the provisions of the Act. But payment of ex-gratia amount has not been reckoned by the Workmen''s Compensation Commissioner.

The accident, employment and monthly salary are not disputed. Total quantum of compensation is also not disputed.

Therefore, we proceeded to hear both sides on the short point raised. It is seen from the order of the Workmen''s Compensation Commissioner that the opposite parties before the Commissioner were absent and declared ex-parte and it was found that there was no dispute against the claims of the applicant. On the side of the applicant proof affidavit was filed. The applicant was examined as AW1 and Exts. A1 to A5 were marked. The deceased was found to have completed 36 years of age (age factor is 194.64) at the time of the accident on 23.3.2007. The Commissioner accepting the statement that he was getting Rs. 250/- per day adopted monthly salary of Rs. 4,000/- for calculation of compensation amount. In the operative portion of the order after noticing that the Electricity Board has deposited Rs. 3,44,280/- on 21.11.2007 further directed to deposit Rs. 76,142/- together with interest at the rate of 12% from 21.11.2007 to the date of the deposit. Learned Standing counsel submitted that the entire amount including Rs. 45,000/- which was disputed have been deposited before the Workmen''s Compensation Commissioner before the filing of this appeal.

Before us, the learned Standing Counsel produced for perusal the entire records relating to the disbursement of Rs. 45,000/-. We find that a stamped receipt has been executed by the mother stating that a cheque for payment of an amount of Rs. 45,000/- viz., cheque No. 863487 dated 24.3.2007of S.B.T. Chalakkudy as a part of eligible ex-gratia/compensation from Kerala State Electricity Board connected with the electrical accident occurred to Mony has been received.

Therefore, the description of the payment is as "eligible ex-gratia compensation". Admittedly, there is no agreement between the parties and nothing of that sort has been registered also under Section 28 of the Act.

The learned counsel for the appellant relied upon the dictum laid down in paragraph 11 of the decision reported in K.M. Varghese Vs. Thankamma @ Ponnamma and Others, . We have gone through the judgment. Going by the facts of the case, the claim petition was filed before the Commissioner in 2006 by the mother, widow and a minor son of the deceased. The claim petition was numbered as W.C.C. 72/06. On 4.1.2008 a petition was filed stating that the parties have arrived at a settlement and the order may be passed in terms of that. It was reported that the widow was paid Rs. 1,50,000/-. She deposed in terms of settlement before the Commissioner. The Commissioner was of the view that the said payment cannot be treated as compensation, as per the provisions of the Act which inhibit direct payment of compensation to dependents of a deceased workman and thereafter compensation was determined.

The Division Bench in detail considered Section 8 and other related provisions of the Act. After considering the same in paragraph 5 it has been held as follows:

"No payment of compensation, otherwise than by deposit with the Commissioner, in respect of a workman whose injury has resulted in death, is to be recognized, except to the extent provision for such payment is made in S. 8 itself and eligible to be reckoned while calculating the total amount payable as compensation under S. 8. No employer can plead to have discharged the liability to pay compensation in such cases, without making deposit before the Commissioner, even if the employer does not dispute the liability and is prepared to pay off the entire amount due to the dependents of the deceased workman in terms of the Act."

In paragraph 6 sub-section 4 to 8 of Section 8 was also considered and it was held as follows:

"This provision also categorically rules out the possibility of the employer settling any claim and paying off the dependents of the deceased workman, without depositing the compensation due under the Act before the Commissioner as enjoined.

Finally in paragraph 8 Their Lordships held as follows:

"For the aforesaid reasons, it has to be stated that law does not recognize any settlement between an employer and the dependents of a workman, of a case where compensation is payable under S. 8 of the Act. No settlement could be recorded under Section 28, in relation to a case where compensation is payable under Section 8 of the Act. Therefore, Ext.A2 is of no value to bind the dependents of the deceased workman. The commissioner has, therefore, acted in accordance with law in deciding the quantum of compensation payable under S. 8 of the Act without reference to Ext.A2 settlement between the parties."

It was therefore found that the Commissioner was acting in accordance with law.

Our attention is invited to paragraph 11 wherein this Court was of the view that, since the claimants are standing by the agreement, and it is an exceptionally exceptional case on being satisfied about the bonafides of the plea and materials, this Court has power in the appeal to consider the same. Finally this Court allowed the appeal confirming the impugned order of the Commissioner and directing that due credit shall be given to an amount of Rs. 1,50,000/-.

As rightly pointed out by the learned counsel for the respondent no parallel can be drawn from the said judgment in the facts and circumstances of this case. That was a case, after the claimant moved the Commissioner, while the matter was pending before the Commissioner, the parties entered into a settlement; payment was made and the claimant also deposed in tune with the payment received before the Commissioner. That is not the true picture here. No attempt was made before the Commissioner, by advancing the plea raised in this appeal for adjusting Rs. 45,000/- from out of the total amount of compensation.

Learned counsel for the respondent relied upon two judgments to contend for the position that such ex-gratia payment cannot form part of the compensation and it is not liable for adjustment. The first one is of the Madhya Pradesh High Court reported in Divisional Engineer M.P. Electricity Board and Another Vs. Mantobai, . The question was whether the Commissioner and the High Court has got jurisdiction to give credit for any direct payment of any nature including payment in the nature of ex-gratia compensation.

After referring to Sections 8, 28 & 29 in paragraphs 13, 14, the legal position was explained in paragraph 13 & 14. We extract these paragraphs below:-

"13. 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 S. 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 S. 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, payable in case of death of a workman. We have no doubt that a case of a death and the case of an injury only are not treated on the same footing by the legislature and that S. 8 deals specifically with a case of death ad there is no scope there under for any employer to make any payment "directly" for whatsoever reason, for which he would be able to claim deduction when he had 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 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 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 under S. 8 only can be made. We also hold, therefore, that law was not correctly stated in Smt. Usha Bhai (1985 MPWN 546) (supra) wherein a contrary view was taken".

This Court had also occasion to consider similar issue in the decision reported in Shah Vs. Rajankutty, wherein adjustment was sought for an amount paid under the agreement D1 and this issue was discussed in paragraph 6 which is extracted below:

"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 Mrs. Kathleen Dias Vs. H.M. Coria and Sons, Calcutta High Court held that if an employer pays the dependents ex-gratia 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 Bai Chanchalben Vs. Burjorji Dinshawji Sethna, . 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 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".

This Court negatived the contention of the employer. It was held that what is paid is not advance towards compensation but payment towards funeral expenses. Reference was made to the judgment of the Calcutta High Court reported in Mrs. Kathleen Dias Vs. H.M. Coria and Sons, . Therein the view taken was that if an employer pays dependents, ex-gratia under an agreement, which is not registered under Section 28 he is not entitled to deduct the same amount from actual amount of compensation. Same view was taken by the Gujarat High Court in the judgment reported in Bhai Chanchalben v. Burjorji Dinshawji Sethna (1969(2) LLJ 357).

Herein even though, the receipt does not show the details of the payment which has been described as eligible ex-gratia payment, it does not indicate that, it forms part of the compensation which is payable by the appellant. Apart from the same, when the provisions of Section 8(1) read with Section 28 and 29 prevents the Workmen''s Commissioner from making any adjustment of such a payment, we find no reason to accede to the argument raised by the learned counsel for the appellant. We fully agree with the view taken in Divisional Engineer M.P. Electricity Board and Another Vs. Mantobai, and Shah Vs. Rajankutty, . When the statute provides for particular a mode of doing things it is well settled that other modes are excluded. For payment to be recognised under the Workmen''s Compensation Act certain modes have been provided. Therefore, even if the issue was raised before the Commissioner obviously, he could not have recognised the payment. For that reason also, we reject the contention and accordingly, the appeal is dismissed. No cost.