( 1. ) RESPONDENT figured as the co-claimant with her three minor children aged between 10 years and 3 years in preferring claim for compensation against the appellants before the ommissioner for Workmens Compensation, Gwalior. Her husband was in service of M. P. Electricity Board, (herein appellant No. 2) and he met his death on 7th October 1984 in a fatal accident that took place on that date. Her claim was accepted and an award was passed against the appellants for payment to the claimants of a sum of Rs. 20,798/-as compensation and a further sum of Rs. 1,000/-as penalty. By the same award, interest at the rate of 6 per cent per annum from the date of claim was also ordered to be paid.

( 2. ) THIS appeal, filed under Section 30 of the Workmens Compensation Act, 1923, for short, the w. C. Act or act, was heard by one of us (Dr. T. N. Singh, J), sitting singly and on an order having been made at the time of admission of the appeal itself for the hearing to be expedited, care was taken to dispose of the matter expeditiously. It was heard on 19th August 1987 and 25th August 1987, but on 7th September 1987, the following question of law was referred for the opinion of a Division Bench:

"whether the Workmens Compensation Commissioner, or this court, in appeal, in view of the provisions of Sections 8, 28 and 29 of the Workmens Compensation Act, 1923 has jurisdiction to give credit for any direct payment of any nature, including payment in the nature of ex gratia compensation under any other statutory provision or contract and whether the compensation determined payable to the workman under the Act would be liable to be reduced by such payment?"

( 3. ) IN the instant case, claimant/respondent had been paid by the appellant/employer a sum of Rs. 2,500/-as an ex gratia payment and appellants counsel contended that credit in respect thereof should be given and the award be modified accordingly. It became necessary to make this reference as it was not possible to accept the contention pressed by appellants counsel relying on a decision of a learned single Judge of this court in the case of M. RS. R. T. C. v. Usha Bai, 1985 MPWN 546. Indeed, in the order of reference it had to be mentioned that the correctness of the view expressed in Usha Bais case (supra) needs to be examined because the consensus of judicial authorities cited at the Bar on that date made it necessary to do so. We would, therefore, have occasion to look into the authorities wherein a contrary view was taken. But, we would first look at Usha Bais case (supra) to appreciate the rationale of that decision.

( 4. ) FACTS in that case are similar to those of the instant case. The claimant was widow of an employee of M. P. State Road Transport Corporation and had received an ex gratia payment from deceaseds employer of a sum of Rs. 2,500/ -. In appeal against the award passed by the Workmens Compensation Commissioner, same contention, as raised in the instant case, was pressed that a sum of Rs. 2,500/-was deductible from the award made in her favour. The learned single Judge relied on a Full Bench decision of this court in the case of Kashiram Mathur v. Rajendra Singh, 1983 ACJ 152 (MP), in upholding the contention pressed before him. Although in that case, the other side had argued that decision in Kashirams case (supra) having been rendered in a claim made under Section 110-A, Motor Vehicles Act, 1939 (hereinafter referred to as the M. V. Act) that was not applicable to the case of the decision rendered under the W. C. Act, the learned single Judge saw no difference between the two proceedings under the two different enactments. What also appealed to the learned single Judge was that the said ex gratia payment was not a voluntary payment and, therefore, the prohibition contemplated under Section 8 (1) of W. C. Act was not attracted in the case of such a payment.

( 5. ) IN so far as Kashiram Mathur v. Rajendra Singh, (supra), is concerned, we consider it sufficient to