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2010 Supreme(Guj) 546
IN THE HIGH COURT OF GUJARAT
H.K. Rathod, J.
Jamnagar Municipal Corporation - Appellant
Versus
Rajesh Laljibhai Kabira Through Prabhaben Rajeshbhai and others - Defendants
First Appeal No. 78 of 2010 With Civil Application No. 555 of 2010 In First Appeal No. 78 of 2010
Decided On : 23-02-2010
Advocate Appeared:
For the Appellant :Premal R. Joshi, Advocate.
For the Defendant :T.R. Misha, Advocate.
Headnote:
Civil Procedure Code,1908 – Order 23 – Payment of Ex-gratia - Municipal Corporation –Learned Advocate appearing for appellant corporation has raised only one contention before this court that WC Commissioner has committed gross error in not considering payment of Rs.50,000.00 which was made to widow towards ex-gratia payment but not included in total amount of compensation. In short, his submission is that the moment, accident had taken place appellant Corporation had paid Rs.50,000.00 to wife of deceased namely and thereafter, further amount of Rs.1,57,237.00 was paid as per office order. SO, in all, it comes to Rs.2,20,146.00. He submitted that out of Rs.2,20,140.00, WC Commissioner has given credit of amount of Rs.1,57,237.00 which was paid vide cheque to widow of deceased and not given credit of amount of Rs.50,000.00 which payment was made to widow of deceased by way of ex-gratia payment and, therefore, remaining amount of Rs.62,909.00 was directed to be paid by Corporation to respondent claimant which is contrary to law and, therefore, present appeal is preferred by Corporation. Except that, no other contention is raised by learned Advocate before this Court –Held, It may also be noted that neither Compensation Commission-nor the appellate Courts have any jurisdiction to give any credit for any payment of any nature made to the dependents including any payment in the nature of ex-gratia 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 Compensation Act and law. So the compensation awarded by the Commissioner under the Compensation Act including penalty imposed on the non-applicant for non-payments recoverable and payable through Commissioner under the 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 Procedure Code 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 un-cognisable at law and are not to be given any recognition and are initio bad – Appeal Dismissed.
JUDGMENT :
H.K. Rathod, J.
Heard learned Advocate Mr. Premal R.Joshi for appellant Jamnagar Municipal Corporation and learned Advocate Mr. UT Mishra for respondents claimants.
2. By filing this appeal, appellant corporation has challenged judgment and order passed by WC Commissioner Jamnagar in WC (Fatal) Application NO. 20 of 2001 Exh. 28 dated 31st July, 2009 wherein WC Commissioner has awarded Rs.62,909.00 with 6 per cent interest in favour of claimant.
3. Learned Advocate Mr. Premal R.Joshi appearing for appellant corporation has raised only one contention before this court that WC Commissioner has committed gross error in not considering payment of Rs.50,000.00 which was made to widow towards ex-gratia payment but not included in total amount of compensation. In short, his submission is that the moment, accident had taken place on 3rd August, 2001, appellant Corporation had paid Rs.50,000.00 to wife of deceased namely Prabhaben Rajeshbhai and thereafter, further amount of Rs.1,57,237.00 was paid as per office order dated 6th November, 2001. SO, in all, it comes to Rs.2,20,146.00. He submitted that out of Rs.2,20,140.00, WC Commissioner has given credit of amount of Rs.1,57,237.00 which was paid vide cheque to widow of deceased and not given credit of amount of Rs.50,000.00 which payment was made to widow of deceased by way of ex-gratia payment and, therefore, remaining amount of Rs.62,909.00 was directed to be paid by Corporation to respondent claimant which is contrary to law and, therefore, present appeal is preferred by Corporation. Except that, no other contention is raised by learned Advocate Mr. Joshi before this Court. Appellant Corporation has deposited Rs.77,412.00 before WC Commissioner on 22.9.2009.
4. Learned Advocate Mr. Mishra appearing for respondents claimants has made his submissions while supporting impugned judgment and order passed by WC Commissioner.
5. I have considered submissions made by both learned advocates. I have also perused impugned judgment and order passed by WC Commissioner, Jamnagar. Aforesaid question has been examined by WC Commissioner, Jamnagar in paragraph 14 while considering section 8 of WC Act and came to conclusion that no direct payment made by employer is to be given credit to employer while determining an amount of compensation. In view of observations made by WC Commissioner in paragraph 14, section 8(1) of WC Act is relevant, therefore, section 8(1) of WC Act is reproduced as under:
"8(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 workman 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 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 employer."
6. Considering provisions of section 8 of WC Act, is designed with an object to protect heirs and legal representatives of deceased workman against any kind of exploitation or fraud likely to be practised on them by or on behalf of employer or any third party. This Court, in case of Samuben v. Patel Industries, 1994 (2) LLJ 981, held that direct payment to legal heirs of deceased workman not deemed to be any payment. This Court also held that employer should deposit the amount with the Commissioner. Relevant paragraph 4,5,6 and 7 of said judgment of this Court are quoted as under:
"4. It would be quite proper to look at the relevant provisions contained in Section 8 of the Act. Sub-section (1) thereof is material for the purpose. It reads :
No payment of compensation in respect of a workman whose injury has resulted in
