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2020 Supreme(Kar) 591
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
P.N.DESAI, J.
Nusrat Jahan W/o Late Paigambar Mulla - Appellants
Versus
The Managing Director, Kalaburagi Electrical Supply Co. Ltd. – Respondent
Miscellaneous First Appeal No.200839 of 2017(WC)
Decided on : 25-06-2020
Advocate Appeared:
For the Appellant :SHRI B.K, PATIL Advocate
For the Respondent:SRI.AMEET KUMAR DESHPANDE ADVOCATE
Headnote:
Indian Contract Act, 1872 - Employees Compensation Act 1923 - Sections 8, 28 & 29 – Constitution of India, 1950 - Articles 39(a), 41, 42, 43 and 46 – Employment and service – Claim of compensation – Jurisdiction - Whether deduction of Ex-gratia amount by Commissioner for Employees compensation in amount of compensation determined under Employees Compensation Act is in accordance with provisions of Employees Compensation Act 1923 - Whether such a sum as ex-gratia amount sanctioned by Commissioner to dependants of deceased is to be deducted in compensation amount determined by Commissioner under Employees Compensation and to consider its legality it is necessary to refer to objection statements of said Employees Compensation Act and relevant provisions under said Act which deals with distribution of compensation - 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 employer to Commissioner who shall on being satisfied as to its genuineness record memorandum in a register in prescribed manner - Whether under agreement or otherwise - Whether ex-gratia amount paid by department is to be deducted in compensation apart from other benefits - Appellants filed claim petition before the III Addl. Senior Civil Judge & Commissioner for Employees Compensation contending that deceased was engaged by respondent No.1 as a lineman and he was deputed subsection while discharging his duties due to electrical accident he died - So they claimed compensation by filing this petition - Respondent contested claim petition before Commissioner for Employees by admitting relationship of employee and employer and occurrence of accident in written statement but denied that deceased was getting salary per month but admit that they used to pay per month - Further contended that respondent was already paid compensation - With these contentions respondent has prayed to dismiss petition - Respondent neither adduced any evidence nor produced any document – Held, Court can be deduced from aforesaid exposition of law is that neither 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 nature of ex-gratia compensation - Further if an employer pays dependents ex-gratia under an agreement which is not registered even then same is not liable to be deducted from actual amount of compensation - Provisions of section 8(1) read with Section 28 and 29 of Act prevent Workmen’s Compensation Commissioner for making any adjustment of such payment - Court would therefore answer in negative question referred to court - Court hold that neither 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 nature of ex-gratia compensation whether made under any other statutory provision or under contract – Court further hold that compensation which is determined payable to workman under Act is not reducible on account of such payment though deduction or repayment contemplated statutorily under Section 8 only can be made – Court also hold therefore that law was not correctly stated in case wherein a contrary view was taken - Apart from Sections 8, 28 & 29 of Employees Compensation Act, 1923 and principles stated in above referred decisions there is no more aspect in this case which is not disputed by respondent wherein respondent-corporation after referring to its regulations in respect of passed resolution for sanction of compensation ex-gratia as one time financial benefit to dependents of probation who died due to electrical incident and it is stated in said order that compensation is in addition to compensation paid to dependents of deceased under Employees Compensation Act, 1923 - In view of clear provisions of Sections 8, 28 & 29 of Employees Compensation Act and principles stated in above referred decisions of various High courts coupled with order issued by respondent KPTCL deduction of ex-gratia compensation by Commissioner for Employees Compensation is not in accordance with provisions of Employees Compensation Act 2003 and to that extent Judgment passed by trial court requires modification and needs to be interfered - Learned counsel for respondent contended that interest cannot be awarded on amount which was already paid as ex-gratia but such contention is not tenable in view of order of respondent which clearly states that in addition to compensation determined by Commissioner under Employees Compensation Act - In absence of any provision of law or authorities such contention cannot be accepted - Appeal is partly allowed
JUDGMENT :
The appellants – petitioners have preferred this appeal against the Judgment passed by the III Addl. Civil Judge (Sr.Dn.) & Commissioner for Employees Compensation, Kalaburagi dated: 09-01-2017 in ECA No.249/2014 whereby the Commissioner partly allowed the claim petition, thereby awarding compensation for Rs.5,19,950/but deducted Rs.5,00,000/as ex-gratia amount and awarded a sum of Rs.19,950/with interest at the rate of 12% per annum.
2. The appellants filed claim petition before the III Addl. Senior Civil Judge & Commissioner for Employees Compensation, Kalaburagi contending that, deceased Pigamber Maheboobsab Mulla was engaged by the respondent No.1 as a lineman and he was deputed at Bilwar subsection of Jewargi and on 18-09-2012 while discharging his duties, due to the electrical accident he died. So they claimed the compensation by filing this petition.
3. The respondent contested the claim petition before Commissioner for Employees by admitting the relationship of employee and employer and occurrence of accident in the written statement, but denied that the deceased was getting salary of Rs.12,000/per month, but admit that, they used to pay Rs.5,000/per month. Further contended that respondent was already paid compensation of Rs.5,00,000/. With these contentions respondent has prayed to dismiss the petition. The respondent neither adduced any evidence, nor produced any document.
4. The appellant No.1 adduced the evidence and got marked nine documents.
5. After hearing the arguments, learned Commissioner for Employees Compensation awarded compensation of Rs.5,19,950/-but deducted Rs.5,00,000/- ex-gratia amount paid to the legal heirs and held that they are entitled only for remaining compensation of Rs.19,950/with interest at 12% per annum.
6. Aggrieved by the same, the appellants have preferred this appeal.
The brief contention of the appellants is that, appellant No.1 is the wife, appellant No.2 is the daughter and appellant No.3 is the mother of deceased Paigambar Mulla. The appellants have contended that, deceased died due to electrical accident while he was discharging duties as probationary majdoor (lineman) under the respondent. It is contended that, the deceased was drawing a salary of Rs.12,000/per month. The relationship between the employee and employer is not disputed. The only ground urged is that, the trial court has not considered the law regarding award of compensation, the age of the appellants is not properly considered. It is well-settled law, that ex-gratia amount cannot be deducted in the compensation awarded. The trial court has not appreciated the documents and not considered the petition in accordance with law. The interest granted is not proper. With these main contentions the appellants have prayed to allow the appeal by setting aside the impugned Judgment.
7. Learned counsel for appellants vehemently argued that, the deceased was working as probationary majdoor under the respondent and admittedly he died due to electrical shock. This aspect is not disputed. The Commissioner for Employees Compensation has taken the salary of deceased at Rs.5,000/-per month. The respondent has also admitted the same. The main arguments of the appellants is that, deducting ex-gratia amount in the compensation amount is not in accordance with the provisions of Employees Compensation Act 1923, so the award of compensation is not proper.
8. Against this, learned counsel for the respondent argued that, the respondent has already paid compensation for the same. So, the same is deducted by the Commissioner, there is no evidence adduced by the appellants to prove that the deceased was getting higher salary. Therefore, there is no justification to interfere with the order of the Commissioner for Employees Compensation.
9. On hearing the learned counsel for both the parties, the substantial question of law that arises for consideration in this appeal is:
(1) Whether the deduction of Ex-gratia amount by Commissioner for Emplo
