1985 Supreme(MP) 405

S. Awasthy, J.
M.P S.R.T.C. v. Smt. Usha Bai.
M. A. No. 299 of 1981 (J); Decided on 26-8-1985.

Headnote:(1) Workmens Compensation Act, 1923 -- S. 10 -- Motor Vehicles Act, 1939 -- S. 110-A -- widow not party in claim case before Motor Vehicles Tribunal -- can maintain claim under section 10, Workmens Compensation Act.

        (2) Workmens Compensation Act. 1923 -- Ss. 10 & 8 -- claim under -- ex-gratia payment made by master directly -- is a mandatory payment under law -- S. 8 does not apply -- such payment is deductible from total compensation.

        This appeal has been filed u/s 30 of the Workmens Compensation Act. 1923 against the award dated 3-6-1983 passed by the Commissioner for the Workmens Compensation Act, M. P. Jabalpur in case No. 40/82 (fatal).

        It is alleged by the respondent in her application for compensation that her husband late Kanti Bhushan was employed as a Conductor with the appellant non-applicant. While working as such, he was going to pay the octroi tax at Seoni barrier on 16-4-1982 when the truck No. MRI, 3083 crushed him as a result of which he died on the spot. The deceased was earning Rs. 350/- per month and, therefore, claimed Rs. 19,200/- as compensation.

        Held : The Commissioner found the appellant liable to pay the entire amount i.e. Rs. 19, 200/- and did not adjust Rs. 2,500/- which was paid to the respondent as stated above. The contention of the appellant is that the application before the Workmens Compensation Commissioner is not tenable as a claim has been made u/s 110-A of the Motor Vehicles Act before the Claims Tribunal for the same accident. This contention is without any substance as the claimant has made the claim against the master for the accidental death of her husband during the course of his employment. She has not laid any claim before the Motor Vehicles Tribunal. Moreover, the appellant has not been impleaded as a party in the Motor Vehicles claim. Since the date of the decision of this matter, the Claims Tribunal has not decided the claim. The point may be urged before the Motor Accidents Claims Tribunal and not before the Workmens Compensation Commissioner. If two simultaneous proceedings are not maintainable, the other proceeding which is pending before the Claims Tribunal shall be rejected but the present award can not be set aside on this account.

        The only important point which requires consideration is regarding the ex-gratia payment of Rs. 2,500/- to the claim lot being adjusted in the amount of compensation. The learned counsel for the appellant has relied on Kashmiran v. S. Rajendrasingh (1983 J.C.J. 113 (para 26) for his submission. While the respondent has relied on M/s Kanoria Overseas Corporation v. Dama Vanti Vyas (ATR 1983 Patna 95) and Smt. Kalawati v. Balwant Singh (ATR 2985 Allahabad 124).

        The learned counsel for the respondent referred to section 8 of the Workmens Compensation Act and argued that the amount of compensation is not to be paid directly to the claimant but the same is to be deposited with the Commissioner and any payment made directly by an employer shall not be deemed to be a payment of compensation. His submission is that the exgratia payment has been made directly to the claimant which can not be deducted from the amount of compensation awarded by the Commissioner. In the case of Mrs. Kathleen Dias v. H.M. Coria and Sons (The Indian Factories Journal vol. III (l951-52) para 304). The legal representatives of the deceased received a payment of Rs. 3,000/- from the employer and gave a receipt therefore. It was mentioned in the receipt that they had no claim against the employer and the amount of Rs. 3,000/- was paid to them as ex-gratia payment only. The learned Commissioner deducted the said amount from the amount of compensation awarded by him. It was held that the Commissioner was in error by deducting the said amount from the amount of compensation.

        In another case of Bai Chanchalden v. Surjorji Dinshawji Sothna (1969 Labour Law Journal Vol. 2, page 357), the amount of ex-gratia payment was alleged to be made out of mercy and the set off of the said amount was not granted by the High Court of Gujrat.

        These cases are distinguishable as the payments were made inspite of the fact that it was mentioned that the claimant had no right to get the compensation yet, the amount was being paid to her. It was held that the said amount was not being paid as compensation but was paid out of mercy. Since it has been held in the case of Kashmiran v. S. Rajendrasingh (1983 J. L. J. 113) that payment of ex-gratia amount is a condition of the contract of service, it is payable only on the death of the employee. This is not a voluntary payment on charitable grounds but is an advantage by reason of the death. This amount cannot be claimed by the defendant unless death or the employee has occurred. This amount was, therefore, deductible from the amount of compensation. The learned counsel for the respondent argues that the aforesaid decision was given under the Motor Vehicles Act which is not applicable in the case of Workmens Compensation Act. I fail to agree with the submissions of the counsel for the respondent. The Principle is that it being not a voluntary payment, the provisions of section 7 (1) shall not apply to the facts of the present case. If a dependent is not paid such an amount on the death of the workman, it would be very difficult for the dependent to bring the action under the Workmens Compensation Act and/or to maintain himself/themselves. Under these circumstances, it cannot be said to be a direct payment by the employer to the employee as it is a mandatory payment under the law. 1983 J. L. J. 113 (FB) followed, AIR 1983 Pat. 95, AIR 1985 All. 124, (1951-52) III I. F. J. para 304 and 1969 LL. J. II 357 distinguished. Appeal partly allowed.