The right to compensation under the Workmen's Compensation Act survives the death of the workman and passes on to his heirs and legal representatives, and the application for compensation does not abate upon the death of the workman.

PATEL, J. :- One Santoline Fernandes was employed by the Opponents M/s. Mackinnon Mackenzie and Co. Private Ltd., on their vessel ' m. v. Pandua' on May 4, 1960. In the course of his employment, he suffered, while removing certain articles in the store-room of the ship, injury to his eyes by chilly powder He washed his eyes and to some extent h felt some relief But in about 4 to 5 days' time, a film developed in the eyes. The Chief Officer had no medicine for the eves At Kobe in Japan, the master of the ship took him to a Japanese doctor. At Ure he was taken to a hospital. From there when, the ship reached Yokohoma he was taken to a hospital and an operation was performed The petitioner remained in the hospital for six days. He was then transferred to a cargo ship 's. s. Umaria' belonging to the respondents and brought to Bombay. He then gave notice of the accident because permanent defects developed in his eyes and then he made the application for award of compensation against the respondents, claiming a sum of Rs. 5,600.

2. During the pendency of the application, the employee died and his heirs, now the two petitioners, made an application to the Commissioner for being brought on record as legal representatives. This application was resisted by the respondents. The Commissioner held that there was no provision in the Act for bringing heirs and legal representatives on record of the case, that the dependants were entitled in their own right to seek remedy under the Act and that, therefore, the application of the petitioners to be brought on record was not tenable and the claim abated.

3. The first question is whether the claim of the workman has abated.

4. The question must depend, in the first instance, upon the terms of the Act itself. Prior to the passing of the Act, a workman who suffered injury had no remedy except when he could justify the claim for damages on the ground of tort. By the Workmen's Compensation Act, he became statutorily entitled for compensation for injury and death under S. 3, if he was a workman and if "accident arose out of and in the course of this employment". By the same section, his employer became liable to pay compensation in accordance with the provisions of Chapter II of the Act. except in the excepted cases Section 4(1) prescribes the amount of compensation which is calculated on the basis of his monthly wages as in Sch. IV. In the cases of total disablement, in cases falling within Sch. I, proportionately to the loss of earning capacity in accordance with the prescribed percentage of loss in that Schedule and in other cases not specified in Schedule I, in proportion to the loss of his earning capacity.

5. Section 4A provides that the compensation under Section 4 shall be paid as soon as it falls due. This means that the payment of compensation is not dependent upon the determination of the same by the Court or on its discretion. But it must be paid immediately it falls due. By Sub-Section (2) even if the employer disputes the amount, he is bound to make provisional payment on the basis of the extent of the liability which he admits, and by Sub-Section (3) it is provided that if the employer is in default in paying the amount within one month from the date it falls due. the Commissioner may direct simple interest at the rate of 6 per cent per annum together with a sum not exceeding 50 per cent by way of penalty if the Commissioner finds that there was no justification for the delay. Examination of S. 11 indicates that even where the work-man

has suffered injury by accident and is entitled to compensation, his right to compensation is suspended under Sub-Section (2) of that section because of his refusal to submit to medical examination, it he dies without his medical examination having been done his dependants may be able to obtain the same. Even if an employer transfers his assets before making payment of the amount due when the liability has accrued before the date of the transfer Secti