A Party can not be allowed to approbate and
reprobate.
A party cannot be permitted to “blow hotblow
cold”, “fast and loose” or “approbate and reprobate”. Where one
knowingly accepts the benefits of a contract or conveyance, or
of an order, he is estopped from denying the validity of, or the
binding effect of such contract, or conveyance, or order upon
himself. This rule is applied to ensure equity, however, it must
not be applied in such a manner, so as to violate the principles
of, what is right and, of good conscience.
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1122 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Siddharth Sambhaji Survase
Versus
Air India Charters Ltd.
CORAM : A.P
. BHANGALE, J
JUDGMENT PRONOUNCED: SEPTEMBER 26, 2013
Citation;2014(4) MHLJ374 Bom
This appeal is taken up for final hearing by
consent. The appeal is preferred under Section 30(1) (c) of
the Employee's Compensation Act, 1923(hereinafter referred to
as 'Act'.) Heard submissions at the bar at length with
reference to the compilation filed on behalf of the appellant of
the recorded evidence and copies of annexures and Judgment
by Learned Commissioner.
Facts are that on 22052010, an Air crash accident
occurred at Mangalore in which 158 persons were killed
which, inter alia, included passengers and crew members of ill
fated Air plane. Miss Sujata Siddharth Survase (Daughter of
Appellants Siddharth and Mrs Pushpa) was one of them. The
grievance of the appellants is limited against the order dated
15042013 passed by the Commissioner for Employees
Compensation, whereby direction was given for deduction of
the amount of Rs Ten Lakhs earlier paid as interim
compensation from the amount of Rs.25,87,655/ deposited
by the Employer Air India Charter Ltd under the Employees
Compensation Act. The amount was payable to the dependents
of the young teenaged employee Ms Sujata Siddhartha Survase
who fell victim in the Mangalore Air Crash.
3
The Employer informed appellants that by letter
dated 13072012 the employer had deposited the amount of
Rs 25,63,506/(24,208/Monthly salary x 50% x 211.79) on
06072012 vide Cheque no. 006256 dated 10072012 as
compensation provided under the Act, required to be
deposited under Section 8(1) of the Employees Compensation
Act, before Learned Commissioner empowered to distribute the
compensation amount. Employer had earlier paid interim
compensation in the sum of Rs Ten Lakhs vide Cheque no.
005190 dated 14062012 to the dependent claimants on
account of Siddharth Survase (Father of deceased employee)
and informed by letter dated 15th June 2010 thus:
Dear Sir,
The tragic death of your daughter Miss
Sujata.S.Survase in the unfortunate
tragedy of our flight IX812 of 22nd May
2010 was a big shock to all of us. We
want you to know that our thoughts are
with you and your family during this
difficult time.
We also want you to know that Air
India Express will always remember the
services rendered by your daughter Miss
Sujata S. survase to the Company.
Enclose herewith please find Cheque
No. 5190 Dated 14th June 2010 for Rs
10,00,000/ as an interim compensation
to be adjusted out of the amount of
compensation to be paid by Air India
Charters Limited.
Also enclosed herewith please find
Cheque No 5489 Dated 14th June 2010 for
Rs 2,00,000/ from the Prime Minister's
Relief fund.
May God give you the courage to get
over this tragedy.
S/d
Chief Operating Officer
Air India Express
To Shri
Siddharth S. Survase
11/12, Sankalpana C.H.S.SVP Nagar
MHADA Complex, Four BunglowsAndheri West
Mumbai 400 053
Tilak
Thus, Company claimed refund from the amount deposited
with the commissioner during the pendency of the proceeding
before the Commissioner.
It is not disputed by the Appellant that on 13 th July
2012 they were informed by the respondent Employer that
amount of Rs.25,63,506/ was deposited with the
Commissioner as compensation payable to dependents of Ms
Sujata Siddhartha Survase as per the provisions of the
Employees Compensation Act, 1923. It is contended that the
learned Commissioner ought to allow set off only to the extent
of an amount equal to three month's Wages paid directly by the
Employer to the dependents of the deceased employee and not
for any more amount because according to Learned counsel for
the Appellant, Section 8(1) of the Act prohibits an Employer
from directly making payment of Compensation to the
dependent of the employee and any payment made directly to
the employee beyond three months shall not be deemed to be
compensation. Thus, it is contended on behalf of the Appellant
that commissioner can not direct deduction of the amount
exceeding three months Salary/wages from the amount
deposited. Thus, according to the learned counsel for the
appellant the amount exceeding sum of Rs.72,624/ could not
have been deducted from the statutory amount deposited by
the Employer.
{A}The substantial question posed
before this Court is whether the
Commissioner was justified to direct
deduction and refund of the amount of Rs
Ten Lakhs as surplus paid by the Employer
as interim compensation to the dependents
of the deceased employee Air crew Sujatha
Sidharth Survase from the amount deposited
by the employer as the total sum required
to be deposited by the Employer with the
Commissioner as compensation provided for
under the Act?
{B} What Order?
My answer considering the facts and circumstances of the case
to point {A} is affirmative and to point {B} is that the appeal
must be dismissed with no order as to costs under the
Learned Counsel for the Appellant placed reliance
circumstances as per final order.
upon the ruling in Kathleen Dias Vs.H.M. Coria reported in
LAWS (Cal)1951216. In that case the Employer had issued
a Cheque as exgratia payment which was acknowledged by
the dependents of the deceased workman. Later, when claim
was made with the Commissioner, compensation was granted
only in the sum of Rs 475/ after deduction of the sum of Rs.
3000/ paid as an exgratia payment. Section 17 of the Act, it
is held that protects ignorant workman who may be induced by
the employer to agree to less compensation, or to abandon
something which the workman is entitled to claim under the
Act. If the employer pays on his own to the workman he does
so with the risk that he will not be entitled to get set off for a
sum so paid. Further as a contract it should have been
registered under Section 28 of the Act. Calcutta High Court
held when that was not done, the employer was not entitled to
get a set off for the sum paid Rs 3000/ to the workman. The
ruling referred to the prohibition contained in Section 8 of the
Act from direct payment to the workman as it shall not be
deemed as compensation but as an ex gratia payment.
Learned Counsel for the Appellant then referred to
the ruling in Bai Chanchal Ben Vs. Burjorji Dinshawji
LAWS(GJH)19681111. In this case, the amount of
compensation was payable in the sum of Rs 3000/ but the
Commissioner ordered the award of sum of Rs 1500/ as
payable having deducted the sum of Rs 1500/ earlier paid by
the employer. Following the ruling in Kathleen Dias, Gujarat
High Court allowed the appeal by modifying the award in the
sum of Rs 3000/.
Third ruling referred by Shri Naidu is Divisional
Engineer M. P
. Electricity Board Vs Mantobai LAWS(MPH)
1988715. The question raised was as to whether the
Commissioner or Court in appeal has jurisdiction to give
credit to any direct payment in the nature of ex gratia
compensation under any statutory provision or Contract and
whether any compensation payable under the Act is liable to
be reduced by such payment? Under the Act in case of
workman's death the mode of payment is specified. It is by
way of deposit with the Commissioner. Section 8 read with
Section 28 and 29 of the Act contains statutory bar against any
payment to be made directly by an employer against any
amount due and payable as compensation.
8
Fourth ruling which is pressed in to service by Shri
Naidu is Nasira Nazir Vs. Executive Engineer 1999 IIILLJ
(Suppl) 112 (J&K High Court). It was held that the
provisions of section 8 are designed to protect the heirs and
legal representatives of the deceased workman against any
kind of exploitation or fraud likely to be practiced on them by,
or on behalf of the employer or any third party, hence neither
Commissioner nor the appellate Court under the Act have any
jurisdiction to give any credit for any payment of any nature
made to deceased dependents including any payment in the
nature of ex gratia compensation either made under any
statutory provision or under a Contract. In this case, the
ig
payment made of ex gratia sum as well as employment given
to the son of the deceased Workman was not considered as a
ground to absolve the employer of his liability under the
Workmen 's Compensation Act.
Fifth ruling referred by Shri Naidu is Shah Vs
Rajankutty LAWS(KER)2005768. In this case, the advance
payment was made towards funeral and other expenses.
Division Bench of Kerala High Court held in view of section 8
of the Act that the entire Compensation has to be deposited
with the Commissioner. If any advance is made towards
Compensation maximum three months wages can be deducted
by the Commissioner. Claim for deduction of the sum paid by
way of an ex gratia under the unregistered agreement cannot
compensation payable under the Act.
be deducted by the Commissioner from the amount of
Sixth ruling referred is Jamnagar Municipal
Corporation Vs Rajesh Laljibhai Kabira etc. 2010(125) FLR
ig
997 Gujarat High Court. It refers to the legal position that
the compensation has to be deposited with the Commissioner,
and not to be paid otherwise by the employer. The provisions
of the Act are designed to protect the heirs of the deceased
workman against any kind of exploitation or fraud likely to be
practiced on them by or on behalf of the employer or any third
party.
Learned Counsel for the appellant also invited my
attention to the ruling in Suchitra Devi Vs. Presiding officer,
Labour Court and another (1996) 8 SCC 70. The Apex Court
did not enter into discussion as to whether the amount was
rightly deducted or not, observing thus:
“2. We have heard Mr Dipankar Gupta,
learned Solicitor General. There is
considerable plausibility in the
contentions raised by him but in the
facts and circumstances of this case we
are not inclined to agree with him. We
do not wish to go into the question as
to whether the Management rightly
deducted Rs. 10,000 from the
compensation amount or not. Keeping in
view the ghastly tragedy and the misery
which must have fallen on the family of
the deceased workmen, we are of the
view that the deduction made was wholly
unjustified. We therefore set aside the
impugned order of the Labour Court and
the High Court and direct the
Management to pay a sum of Rs. 10,000
12
to each of the workman's heirs/family
with 12% interest from January 1, 1983.
It is settled principle of law that when a Statute
requires anything to be done in a particular manner, it has to
be done only in that manner and no other manner. Section 8
of the Act require the employer to deposit the full amount
provided as compensation payable to the dependents of the
employee with the Commissioner. The Legislature therefore
to prevent fraud or undue influence by or on behalf of the
Employer, and to protect the right of the employee or his/her
dependents right to receive just compensation provided that
the payment of compensation otherwise than by deposit with
the Commissioner is deemed as no payment of compensation,
because Contracting out of the Statute is not permissible for
any employer liable to pay compensation provided under the
Act. Therefore, there is statutory bar for the employer to pay
directly to the employee any amount which is payable as
'compensation' under the Act. At this stage, it is necessary to
refer relevant provisions of the Act and bear them in mind.
Section 2 Definitions
(1)In this Act, unless there is anything repugnant
in the subject or context,
(a) * * *]
[a] Clause (a) omitted by the Workmen's
(b) "Commissioner" means a Commissioner for
Compensation (Amendment) Act, 1959(8 of 1959),
Workmen's compensation appointed under section
20;
(c) "compensation" means compensation as
provided for by this Act, (emphasis mine)
Section 4. Amount of compensation
(1) Subject to the provisions of this Act, the amount of
compensation shall be as follows, namely :
(a) Where death results
from the injury
An amount equal to fifty percent
of the monthly wages of the
deceased workman multiplied by
the relevant factor;
or
An amount of fifty thousand
rupees, whichever is more;
(b) Where permanent
total disablement
results from the injury
an amount equal to sixty percent
of the monthly wages of the
injured workman multiplied by
the relevant factor
or
An amount of sixty thousand
rupees, whichever is more;
relevant factor applicable was 211.79 x
monthly salary of Rs 24208/ divided by 50% of the deceased
employee. Thus, the sum calculated at Rs. 25,63,506/ was
deposited by the Employer with the Commissioner.
Section 8 reads thus:
8.Distribution, of compensation
(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
woman or a person under a legal disability, shall be
made otherwise than by the deposit with the
Commissioner, and no such payment made directly
by an employer shall be deemed to be a payment of
compensation:
(b) provided that, in the case of a deceased
workman, an employer may make to any dependent
advances on account of compensation of an
amount equal to three months wages of such
workman and so much of such amount as does not
exceed the compensation payable to that dependent
shall be deducted by the Commissioner from such
compensation and repaid to the employer.
(2)Any other sum amounting to not less than ten
rupees which is payable as compensation may be
deposited with the Commissioner on behalf of the
person entitled thereto.
(3) The receipt of the Commissioner shall be a
sufficient discharge in respect of any compensation
deposited with him.
(4) On the deposit of any money under subsection
(1) as compensation in respect of a deceased
workman the Commissioner shall, if he thinks
necessary, cause notice to be published or to be
served on each dependent in such manner as he
thinks fit, calling upon the dependents to appear
before him on such date as he may fix for
determining the distribution to the compensation. If
the Commissioner is satisfied after any inquiry
which he may deem necessary, that no dependent
exists, he shall repay the balance of the money to
the employer by whom it was paid. The
Commissioner shall, on application by the employer,
furnish a statement showing in detail all
disbursements made.
(5)Compensation deposited in respect of a deceased
workman shall, subject to any deduction made
under subsection (4), be apportioned among the
dependents of the deceased workman or any of
them in such proportion as the Commissioner thinks
fit, or may, in the discretion of the Commissioner, be
allotted to any one dependent.
(6)Where any compensation deposited with the
Commissioner is payable to any person, the
Commissioner shall if the person to whom the
compensation is payable is not a woman or a person
under a legal disability, and may, in other cases, pay
the money to the person entitled thereto.
(7)Where any lump sum deposited with the
Commissioner is payable to a woman or a person
under a legal disability, such sum may be invested,
applied or otherwise dealt with for the benefit of
the woman, or of such person during his disability
in such manner as the Commissioner may direct;
and where a half monthly payment is payable to
any person under a legal disability, the
Commissioner may, of his own motion or on an
application made to him in this behalf, order that
the payment be made during the disability to any
dependent of the workman or to any other person,
provide for the welfare of the workman.]
whom the Commissioner thinks best fitted to
[(8)] Where, on application made to him in this
behalf or otherwise, the Commissioner is satisfied
that on account of neglect of children on the part of
a parent or on account of the variation of the
circumstances of any dependent or for any other
sufficient cause, an order of the Commissioner as to
the distribution of any sum paid as compensation or
as to the manner in which any sum payable to any
such dependent is to be invested applied or
otherwise dealt with ought to be varied, the
Commissioner may make such orders for the
variation of the former order as he thinks just in the
circumstances of the case :. Provided that no such
order prejudicial to any person shall be made unless
such person has been given an opportunity of
showing cause why the order should not be made,
or shall be made in any case in which it would
involve the repayment by a dependent of any sum
already paid to him.
[(9) Where the Commissioner varies any order
under subsection (8) by reason of the fact that
payment of compensation to any person has been
obtained by fraud, impersonation or other improper
means any amount so paid to or on behalf of such
person may be recovered in the manner hereinafter
provided in section 31.
10A. Power to require from employers statements
regarding fatal accident
(1)Where Commissioner receives information from
any source that a workman has died as a result of
an accident arising out of and in the course of his
employment, he may send by registered post a
notice to the workman's employer requiring him to
submit, within thirty days of the service of the
notice, a statement, in the prescribed form, giving
the circumstances attending the death of the
workman, and indicating whether in the opinion of
the employer, he is or is not liable to deposit
compensation on account of the death.
(2) If the employer is of opinion that he is not
liable to deposit compensation, he shall in his
statement indicate the grounds on which he
disclaims liability.
(3) Where the employer has so disclaimed liability,
the Commissioner, after such enquiry as he may
think fit, may inform any of the of the deceased
workman that it is open to the dependents to prefer
a claim for compensation, and may give them such
Section 17. Contracting out
other further information as he may think fit.]
(2)Any contract or agreement whether made before or
after the commencement of this Act, whereby a
workman relinquishes any right of compensation
from the employer for personal injury arising out of
or in the course of the employment, shall be null
and void in so far as it purports to remove or reduce
the liability of any person to pay compensation
under this Act.
19. Reference to Commissioners
(1)If any question arises in any proceedings
under this Act, as to the liability of any person to
pay compensation (including any question as to
whether a person injured is or is not a workman)
or as to the amount or duration of compensation
(including any question as to the nature or
extent of disablement), the question shall, in
default of agreement, be settled by a[a
Commissioner.]
(2) No Civil Court shall have jurisdiction to
settle, decide or deal with any question which is
by or under this Act required to be settled,
decided or dealt with by a Commissioner or to
enforce any liability incurred under this Act.
23. Powers and procedure of Commissioners
The Commissioner shall have all the powers of a
Civil Court under the Code of Civil Procedure, 1908,
for the purpose of taking evidence on oath which
such Commissioner is hereby empowered to impose
and of enforcing the attendance of witnesses and
compelling the production of documents and
14
material objects, a[and the Commissioner shall be
deemed to be a Civil Court for all the purposes of
b[section 195 and of Chapter XXVI of the Code of
Criminal Procedure, 1973.
Section 23 clearly indicate powers of the
Commissioner like Civil Court to record evidence and it is
deemed to be a Civil court. Learned Counsel for the
respondent argued that the object of the Act is to provide full
compensation to the dependents of the Workman/employee as
provided under the Act and not to bestow undue or unjust
enrichment upon the dependents of the deceased employee.
Learned counsel for the respondent submitted that the
appellants are not uneducated or illiterate, they are income Tax
assesees with valid Pan number allotted to them and had
consciously accepted the interim compensation by Cheque
without raising any protest. Mr. Bharucha relied upon the
ruling in Rajasthan State Industrial development and
Investment Corporation and another Vs. Diamond and Gem
development Corporation Ltd and another reported in AIR
2013 SC 1241, a Party can not be allowed to approbate and
reprobate.
A party cannot be permitted to “blow hotblow
cold”, “fast and loose” or “approbate and reprobate”. Where one
knowingly accepts the benefits of a contract or conveyance, or
of an order, he is estopped from denying the validity of, or the
binding effect of such contract, or conveyance, or order upon
himself. This rule is applied to ensure equity, however, it must
not be applied in such a manner, so as to violate the principles
of, what is right and, of good conscience. (Vide: Nagubai
ig
Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC
593; C.I.T. Madras v. Mr. P irm Muar, AIR 1965 SC 1216;
. F
Ramesh Chandra Sankla etc. Vs.
Vikram Cement etc., AIR
2009 SC 713; Pradeep Oil Corporation Vs. Municipal
Corporation of Delhi & Anr., AIR 2011 SC 1869; Cauvery
Coffee Traders, Mangalore v. Hornor Resources (International)
Company Limited, (2011) 10 SCC 420; and V
. Chandrasekaran
& Anr. v. The Administrative Officer &
Ors., JT
2012 (9) SC 260).
16
Thus, it is evident that the doctrine of election is
based on the rule of estoppel the principle that one cannot
approbate and reprobate is inherent in it. The doctrine of
estoppel by election is one among the species of estoppels in
pais (or equitable estoppel), which is a rule of equity. By this
law, a person may be precluded, by way of his actions, or
conduct, or silence when it is his duty to speak, from asserting
a right which he would have otherwise had.”
Next ruling cited is In Oriental insurance Co. Ltd
17
Vs. Dyamavva and another reported in 2013 AIR SCW 1506
Hon'ble supreme Court held with reference to section 8 of the
Act thus :
“ Subsections (1) to (3) of Section
8 extracted above, leave no room for
any doubt, that when a workman during
the course of his employment suffers
injuries resulting in his death, the
employer has to deposit
the
compensation payable,with the Workmen’s
Compensation Commissioner. Payment made
by the employer directly to the
dependents is not
recognized
as a
valid disbursement of compensation.
The procedure envisaged in Section 8
of the Workmen’s Compensation Act, 1923,
can be invoked only by the employer
Workmen’s Compensation
for depositing compensation with the
Commissioner.
Consequent upon such “suo motu” deposit
of compensation (by the employer)
with the Workman’s Compensation
Commissioner, the Commissioner may (or
employee, to appear
the concerned
may not) summon the dependents of
before him under subsection (4) of
aforesaid. Having satisfied
Section 8
himself about the entitlement (or
otherwise) of the dependents to such
compensation, the Commissioner is then
required to order the rightful
apportionment thereof amongst the
dependents, under subsections (5) to
(9) of Section 8 of the Workmen’s
Compensation
Act, 1923.
Surplus,
if any, has to be returned to the
employer.”(emphasis mine)
One more submission is advanced on behalf of the Appellant
on the ground that the Shri Praful Patel, then Minister of Civil
Aviation had after the accident, announced before media that
sum of Rs 72 Lakhs would be paid as ex gratia compensation
for each of the deceased in Mangalore airplane crash to his
dependents pursuant to amendment in carriage by Air
(Amendment) Act as India is signatory to the Montreal
Convention. The submission for want of legal evidence cannot
be considered in this appeal. It is also outside the present
controversy of compensation payable as provided under the
Employees Compensation Act,1923. The object of the
Employees Compensation Act is to pay compensation to the
employee as provided under the Act. This is beneficial
legislation to be construed liberally. The provisions of the Act
are also quasipenal in character to ensure that the sum of
compensation payable under the Act is provided under the Act
is deposited by the employee with the Commissioner under the
Act and no contracting out of the Act is permitted between the
employee and the employer bypassing the forum of the
Commissioner, therefore the amount of compensation provided
under the Act has to be deposited with the Commissioner
under the Act. Commissioner has exclusive power alike civil
court to frame issues which may legitimately arise in the case
to decide the amount of compensation payable as provided
under the Act and in the death claim cases as to who are the
'dependents' of the deceased employee concerned and how the
amount of compensation payable under the Act is to be
distributed amongst the dependents. The compensation is just,
fair and equitable sum payable as provided under the Act and
not a bonanza or jackpot for the dependents of the deceased.
While interpreting the provisions of the Act, the court will
adopt that which is just, reasonable, rational and sensible,
rather than which is none of those things. The provisions of
the Act can not be construed in such manner so as to result in
undue and unjustified enrichment for the dependents of the
deceased employee at the cost of public money possessed by
corporate body. Under Section 2 (b), the compensation means
compensation as provided for by this Act, neither more nor
less. The propriety demanded that commissioner in the facts
and circumstances could not have without a valid reason
caused unjust increase to the legal liability of the employer to
pay amount of compensation provided under the Act, so as to
make it payable more than what is provided and payable
under the Act. This Court has held in the ruling of B.T
Shipping London Limited Vs. Arati Narayanan 2000 (2) Mah LJ
832= 2000(3) Bom.CR 381 His Lordship Justice Shri R.N.
Lodha (As his Lordship then was ) for Bombay High Court held
that Commissioner can not award compensation exceeding one
“ 9.
prescribed under the Act. In para 9 it is observed thus:
A conjoint reading of the aforesaid sections
would show that the Workmen's Compensation
Commissioner can order the employer to deposit
further sum if in his opinion the amount so deposited
is insufficient as provided under the Act. Schedule IV
under section 4 provides the factors for working out
lump sum amount fox compensation in case of total
disablement and/ or death. Obviously, in the very
scheme of the Act, 1923, the Workmen's
Compensation Commissioner cannot order the
employer to deposit the amount which exceeds the
amount prescribed under the Act. In other words the
scale of compensation set out in Schedule IV under
section 4 is the compensation that can be awarded by
the Commissioner under the Act and not beyond it.
There is no dispute before me that the amount of
Rs.34,13,330/ deposited by the 2nd petitioner before
the Workmen's Compensation Commissioner is far
larger than the Compensation under the Act for the
death of the deceased workman. The objective of the
Workmen's Compensation Act is to ensure that in the
case of injury or permanent disablement or death of a
workman by accident out of and in the course of
employment, his employer pays him compensation in
accordance with the provisions contained in the
Workmen's Compensation Act and such employee who
has suffered injuries or permanent disablement or the
dependents of the deceased employee are not left high
and dry. Therefore, the compensation that can be
awarded by the Workmen's Compensation
Commissioner has to be in accordance with the
compensation prescribed under the Act of 1923 and
not exceeding thereto. Even in exercise of his powers
under section 22A the Workmen's Compensation
Commissioner can only order the employer to deposit
further amount if he finds and is satisfied that the
amount deposited by the employer is less than the
compensation prescribed under the Act. The adequacy
of deposit has to be seen by the Workmen's
Compensation Commissioner to the extent and in the
light of compensation prescribed under the Act and
not beyond it. Mr.Vaidya, the learned counsel
appearing for respondent nos.2, 3 and 4 referred to
sections 17 and 19(2) of the Act and urged that it is
open to the employer to enter into an agreement for
the compensation exceeding the amount of
compensation provided under the Act. According to
him, in the service conditions there was an agreement
that in the event of death or permanent disability
resulting from injuries/accidental causes whilst on
board the vessel, the employer would provide cover in
accordance with Appendix E to a maximum of three
and a half times annual pay and, therefore, the
dependents respondent nos. 2, 3 and 4 are entitled to
compensation to three and a half times annual pay of
deceased and, therefore, the Commissioner did not
commit any error in directing the employer to deposit
further sum. I am afraid sections 17 and 19(2) which
have been relied upon by Mr. Vaidya in support of his
contention does not support him at all. Section 17
provides that any contract or agreement whereby a
workman relinquishes any right of compensation from
the employer for personal injury arising out of or in
the course of employment shall be null and void in so
far as it purports to remove or reduce the liability of
any person to pay compensation under this Act. The
service conditions in which it has been agreed by the
company to provide cover to the deceased in
accordance with Appendix E to a maximum of three
and a half times annual pay is not related to section
17. It is open to the dependents to enforce their claim
as per the agreement in the service conditions in
accordance with law but it cannot empower the
Workmen's Compensation Commissioner to award
or order for deposit of compensation of that
amount which exceeds the compensation
prescribed under the Act. Section 19(2) of the Act of
1923 only provides that no civil court shall have
jurisdiction to settle, decide and deal with any
question which is by or under the Act required to be
settled, decided or dealt with by a Commissioner or to
enforce any liability incurred under the Act. For
enforcement of the clause in the service conditions
whereby the employer has undertaken to provide
cover in accordance with Appendix E to a maximum
of three and a half times annual pay can be enforced
through civil court and jurisdiction of civil court to
that extent cannot be said to be barred under section
19(2).So far as the Workmen's Compensation
Commissioner under the Act of 1923 is concerned
he is only empowered to award compensation or
order deposit of compensation as prescribed under
the Act and not exceeding thereto.”
(emphasis mine)
According to learned Counsel, the Minister
concerned for Civil aviation had in his statement to the media
announced that the Government would pay Rs 72 Lakhs to
dependents of each of the deceased in that Mishap as payable
under the Air carriage law adopted pursuant to Montreal
convention. The statement, in my humble opinion, cannot bind
the Respondent herein unless there is legal evidence to support
such argument. In the case in hand, the compensation
required to be provided is compensation under the Employees
Compensation Act and not beyond.
Law can not be construed as harsh to such
employer who bonafide without intending to avoid liability
under the Act offers interim compensation with clear indication
to the defendants of the employee that the amount paid is to
be adjusted towards compensation as provided and payable
under the Act. It may be construed as harsh to those who may
be fraudulent or dishonest employer who may try to avoid
lawful liability by adopting clandestine methods, contracting
out etc. as means to cause wrongful loss to the defendants of
the deceased employees.
Therefore in the facts and circumstances of the
present case, no fault can be found with the commissioner's
judgment and order impugned herein, for his decision to
deduct the surplus amount refundable to the employer as it
was a sum advanced as interim compensation to the
dependents of the deceased particularly mentioned as
adjustable from the compensation to be paid. When the
employer gave advance unequivocally mentioned as interim
payment and adjustable from the compensation to be paid, it
could not have been construed as exgratia payment made to
the dependents when it was accepted without protest towards
interim compensation. In the facts of the case the dependents
of the deceased employee were not illiterate or uneducated
persons. They are income tax assesses with allotted PAN
numbers and had consciously accepted the advance of interim
compensation from the employer. Thus employer can not be
penalised for good unilateral gesture of making advance
interim payment of compensation, particularly when the
employer had observed strict obedience to the provisions of
the Act to deposit the entire sum of compensation as payable
and provided for under the Act with the commissioner and
then requested the Commissioner to refund the excess/surplus
sum advanced as interim compensation. The Commissioner to
my mind acted as reasonable, prudent and equitable person in
the facts and circumstances of the case to direct deduction of
the excess / surplus amount with him which was refundable
to the Employer from the total sum deposited as compensation
provided under the Act. I am bound by the view adopted by
this Court and expressed by the Apex Court as mentioned
above. The rulings by other High Courts which are cited on
behalf of the Appellants have mere persuasive value, but could
not persuade me to accept the contrary view for the aforesaid
reasons. Furthermore the letter dated 15062010 from the
respondent addressed to the claimant Siddharth Survase had
made clear that the amount of compensation in the sum of Rs
Ten Lakhs was advanced as interim compensation to be
adjusted out of the amount of the compensation to be paid by
Air India Charter Limited. In the facts and circumstances,
therefore to conclude the appeal following order must be
passed:
O R D E R
After the amount of compensation as provided under the
Employees compensation Act, 1923 along with the interest
reasonable @ 12% interest per annum from the date of the
accident till the deposit made with the commissioners is paid
to the dependents of the deceased employee in the case, the
surplus amount remaining in balance, after deduction of the
compensation amount plus the amount payable towards
interest as above to the dependents of the deceased, surplus
money on accounts, ought to be refunded by the Commissioner
under the Act to the employerAppellant. Hence,
Commissioner's direction in the impugned order is found
without fault. The appeal is found without merits and is
dismissed accordingly. No order as to costs.
(ASHOK P
. BHANGALE,J)
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