JUDGMENT
T.N. Singh, J.
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 Workmen’s 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 Workmen’s 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 Workmen’s Compensation Commissioner, or this court, in appeal, in view of the provisions of Sections 8, 28 and 29 of the Workmen’s 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 appellant’s 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 Bai’s 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 Bai’s 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 deceased’s employer of a sum of Rs. 2,500/-. In appeal against the award passed by the Workmen’s 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 Kashiram’s 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 say this much only that the basis of award made under Section 110-A, M.V. Act is tortious liability and not statutory liability as is the case of an award made under the W.C. Act. Let there be no doubt entertained about the legal position that general principles governing liability under uncodified Law of Torts have no relevance at all to the case of liability created under a statute. Although the claim of a class of persons can arise under both M.V. Act and W.C. Act, as per Section 95 of M.V. Act, if the forum under that Act is availed as per Section 110-AA, the liability would be determined with reference to law applicable to that forum. (See Oriental Fire and General Ins. Co. Ltd. v. Dhanno, 1987 ACJ 759 (MP). That is also the law, because statutory provisions have to be interpreted on their own terms even when there is inter-relation between such provisions. Bearing in mind that aspect of law, we have found ourselves in disagreement with the view expressed by the learned single Judge and we propose to extract, therefore, first, relevant portions from Section 8, aforesaid:
“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 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 dependant 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 dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.
XXX XXX (4) On the deposit of any money under Sub-section (1), as compensation in respect of a deceased workman the Commissioner shall deduct therefrom the actual cost of the workman's funeral expenses, to an amount not exceeding fifty rupees, and pay the same to the person by whom such expenses were incurred,... (5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under Sub-section (4), be apportioned among the dependants 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 dependant."
6. Reading carefully the language used in the extract aforesaid, our view is that there can be ‘no scope to doubt the legislative intent underlying the provision. Indeed, let it be remembered that the W.C. Act is a special law on the subject of payment of compensation by the ’employer’ to the ‘workman’ for any “personal injury caused to a workman by accident arising out of and in the course of his employment”, as is envisaged under Section 3 of the W.C. Act. Therefore, the provisions of Section 8 should be regarded as an enactment made in derogation of other laws dealing generally with the subject of payment of compensation for personal injury. Indeed, it is too trite a proposition to be also reiterated in this context that plain meaning has to be attributed to words and expressions used in any enactment because legislative intent is best understood if that is done as nothing can expose more effectively and adequately the intention of the legislature than the language it has chosen to use. The word used in Section 8 (1) at four places is ‘payment’ and it is not qualified at any place. The prohibition is clear, distinct and inexorable, interdicting any kind of ‘payment’ out of court in connection with a claim for compensation arising under the Act. When it has said that “no such payment made directly by an employer shall be deemed to be a payment of compensation” and it has not made any exception in case of an involuntary payment, we do not think if there can be any scope for any court to read such an exception in the language used by the legislature by interpolating the word ‘involuntary’ to qualify the word ‘payment’ used at any particular place in the section. Doing so would be violative of the basic norm of statutory interpretation.
7. We understand the words “made directly by an employer” to mean an absolute prohibition against any payment made in whatsoever mode, under whatsoever circumstances, by the employer, because the legislature made it to be understood clearly by the employer that he was required to make “deposit with the Commissioner” of the payment to be made on account of compensation payable under the Act. The purport of the word ‘directly’ has to be understood in its context and setting. It clearly refers to payment made out of court; and it makes no difference between a voluntary payment and one made under any compulsion, statutory or contractual. The only exception envisaging payment ‘directly’ by an employer is to be read in the proviso to Section 8 under which a sum of Rs. 100/- in the maximum may be ‘advanced’ to any dependant of a deceased workman which may be deducted by the Commissioner from the compensation deposited with him by the employer, for the purpose of repayment thereof to the employer. The proviso, as also Sub-sections (4) and (5) of Section 8, make it clear that the employer is under a statutory obligation to make deposit with the Commissioner of the entire compensation due payable for death of a workman to fulfil the object of the Act, and, in particular, of Section 8 itself. By judicial determination, the compensation so determined is required to be “apportioned among the dependants of the deceased workman” to prevent destitution of any member of the family dependent on him and any dispute arising between them in respect thereof. Apart from the ‘repayment’ to the employer, contemplated under the proviso to Sub-section (1), the Commissioner is entitled to make payment of a sum of Rs.50/- only, out of the amount deposited by the employer, to any person by whom expenses were incurred in connection with the workman’s funeral. This provision clearly indicates the cast-iron jacket of Section 8 with openings strictly specified.
8. We may now look at some of the other provisions of the Act to seek assurance for the view we have taken. Reading the provisions of Sections 3, 4, and 4-A of the Act, we feel confident to observe that these provisions speak of the intention of the legislature that it is the statutory obligation of the employer to deposit suo motu with the Commissioner the compensation payable to a workman in accordance with the provisions of the Act without intervention of any judicial proceedings. The legislature has, therefore, left no scope for the employer either to make himself any deduction or to seek credit from the court for any deduction or any order for ‘repayment’ from the sum deposited by him with the Commissioner in accordance with the Act except to the extent, and in the manner, provided under Section 8 itself. Section 4-A(1) also carries in it an inexorable mandate of the nature similar to that we have read in Section 8, albeit of a different purport. If says that “compensation under Section 4 shall be paid as soon as it fells due”, while Sub-section (2) thereof adds further to stringency and rigidity of the liability of the employer saying, “he shall be bound to make provisional payment based on the extent of liability which he accepts and such payment shall be deposited with the Commissioner or made to the workman, as the case may be..” Be it noted in this connection that Section 8 is a special provision dealing with the case of a workman “whose injury has resulted in death”, while Section 4 deals with cases not only of death, but also of injuries resulting in different types of disablements, such as ‘total’, ‘permanent partial’ and ‘temporary’. There is no doubt that under Section 4-A(2) payment to be made to the workman is envisaged only in those cases where the injury does not result in death and in the latter case, payment has to be made by way of deposit with the Commissioner. The expression, “as the case may be” exemplifies this position and excludes possibility of any doubt.
9. Legislature has contemplated payment of compensation by the employer suo motu and it has also specified the modes in which the payment has to be effected. In case of a workman’s death, payment by way of deposit with the Commissioner is specified as a mode of payment. Section 4 speaks, “subject to the provisions of this Act the amount of compensation shall be as follows” and it enumerates in Clauses (a), (b), (c) and (d) the modes of determination of compensation in different cases of injuries resulting in death and in disablements of different degrees. Reference is made in those clauses to the Schedules annexed to the Act and in the Schedules, mechanics of actual determination of the compensation is specified in clear terms. The legislature clearly intended that the injured workman, and in the case of a deceased workman, his dependants, would be provided instant succour in full measure envisaged under the Act. Who toils and sweats must share the fruit of his labour even when he is immobilised and his dependants must be cared for when he has perished. But for him, there would be no national prosperity. This intention of the legislature conforms to the constitutional imperatives underwritten in Articles 41, 42 and 43 of the basic statute of our country. This court had an occasion to interpret the provisions of Sections 3 and 4-A of the Act in the case of Om Prakash v. Ramkali, 1987 ACJ 803 (MP), when it was held that the ‘compensation’ payable under the Act falls due as soon as the ‘accident’ lakes place and, therefore, it was statutory obligation of the employer to make payment thereof in accordance with the provisions of the Act and his breach of duty in that regard would also visit him with the ‘penalty and interest’ as statutorily contemplated under Sub-section (3) of Section 4-A.
10. What only remains to be referred are Sections 28 and 29 to say that the provisions thereof equally support our view that there is an absolute statutory bar underwritten in Section 8 against any payment to be made ‘directly’ by an employer against any amount due payable as ‘compensation’ under the Act. In a case where a claim is not lodged in accordance with the provisions of Section 22 of the Act, in the event of neglect by the employer to act suo motu in the matter of payment of compensation, it is contemplated under Section 28 that parties may settle up the question of compensation by an ‘agreement’. The Act vests power in the Commissioner even to refuse to register such an agreement in case he thinks that the agreement was obtained by fraud or undue influence and he is further empowered under proviso (d) of Section 28(1) to make any order “he thinks just in the circumstances” in respect of any sum already paid under the agreement. Section 29 envisages that when any agreement required to be registered under Section 28 is not so registered, then the employer shall be liable to pay full compensation in accordance with the provisions of Section 4 and unless the Commissioner otherwise directs, the employer shall not be entitled to deduct more than half of the amount already paid to the workman by way of compensation under the agreement or otherwise. List it however be noted that deduction envisaged under Section 29 is evidently referable to a case of compensation to a ‘workman’ who is alive and is only injured.
11. We may now refer to the authorities cited to submit that other courts have taken a view contrary to what this court had expressed in Usha Bai’s case (supra). A Division Bench in the case of Kathleen bias v. H.M. Coria & Sons, (AIR) 1951 Cal 513, construed Section 8 of the Act to hold that no deduction on account of an ex gratia payment is permissible “because the section says that such payment shall not be deemed to be payment of compensation”. We are also in respectful agreement with the view expressed by the Calcutta High Court that equity has no place in a statutory provision and that no equity can be read in Section 8 in favour of the employer so as to entitle him to make or seek deduction of any kind of payment made by him. The same view prevailed with a learned single Judge of the Gujarat High Court in the case of Chanchalben v. Burjorji Dinshawji Sethna, (1969-II-LLJ-357). He referred to and relied on the decision in Kathleen’s case, (supra). In the case of Ram Dulari Kalia v. H.P. State Electricity Board, 1987 ACJ 258 (HP), P.D. Desai, C.J. of Himachal Pradesh High Court, also reached the same conclusion in a similar case of a deceased employee of Electricity Board of that State holding that the ex gratia payment to the claimant made soon after the accident had no nexus whatsoever to the compensation which was payable under the provisions of the Act because that ex gratia payment would have been made even if the deceased had not met with the” accident.
12. In the instant case, it appears from Exh.P-6 that on February 6, 1985, an order was made sanctioning “grant of ex gratia payment of Rs. 2,500/- to the deceased workman’s widow”, namely, the respondent, on account of her husband’s death. Reference in the order is made to Board’s Notification which, counsel for the appellants submits, conforms to the decision of the State Government projected in Memorandum No. 2355-IV-R-II- 72, dated November 14, 1972, included in the Compilation of Regulations and Standing Orders on Establishment Matters of M.P. Electricity Board. At page 76 of Part XXXII-A of the said Compilation, the Memorandum aforesaid is reproduced of which we extract the opening paragraph:
“While considering the report of the Madhya Pradesh Pay Commission, 1972, Government felt that for mitigating the hardship and suffering caused to the family of a Government servant who dies while in service, a substantial ex gratia payment should- be made to the dependants of the deceased. To implement this decision, the following orders are passed…”
It is clear that as in the case of Ram Dulari Kalia v. H.P. State Electricity Board, (supra), the ex gratia payment is similarly contemplated in this case also to dependants of a deceased employee without any reference to the cause of his death and it is meant for “mitigating the hardship and suffering caused to the family” of a person employed by the Board.
13. Whatever may be the view held by the Himachal Pradesh High Court, we do not feel disposed to take a narrow view of the provisions of Section 8 of the W.C. Act. On the other hand, we are inclined to agree with the Calcutta High Court, albeit for the reasons we have given above, that there is a total bar to be read in Section 8 against any deduction to be made by the employer or by the court for any payment made by the employer out of court, under any circumstance, so as to reduce the corpus of the compensation determined by the Act itself, i.e., payable in case of death of a workman. We have no doubt that a case of death and a case of an injury only are not treated on the same footing by the legislature and that Section 8 deals specifically with a case of death and there is no scope thereunder for any employer to make any payment ‘directly’, for whatsoever reason, for which he would be able to claim deduction when he has deposited the compensation suo motu or even when awarded against him by the Commissioner or this court in appeal.
14. We would, therefore, answer in the negative, the question referred to us. We hold that neither the Workmen’s Compensation Commissioner nor this court, in appeal, has any jurisdiction to give any credit for any ‘direct’ payment of any nature made to deceased workman’s dependants, including any payment in the nature of ex gratia compensation, whether made under any other statutory provision or under contract. We further hold that the compensation which is determined payable to the workman under the Act is not reducible on account of such payment though ‘deduction’ or ‘repayment’ contemplated statutorily under Section 8 only, can be made. We also hold, therefore, that law was not correctly stated in Usha Bai’s case, (supra) wherein a contrary view was taken.
15. We are also of the opinion that at this belated stage, it shall serve no useful purpose to send back this matter for further hearing before the single Bench as that Bench would not be available for some time and indeed, one of us (Dr. T.N. Singh, J.) who had heard the matter, sitting singly, is a party to this decision. We propose, therefore, to dispose of this appeal finally and for that purpose, we propose to dispose of finally today the other two contentions which appellants’ counsel had agitated.
16. It was contended that the award, in so far as it concerns “penalty and interest”, is not legally sustainable because the learned Commissioner has not framed any issue in regard thereto. This contention can be summarily disposed of on the holding of Om Parkash v. Ramkali, (supra). The same question had arisen in that case and interpreting the provisions of Section 4-A(3) of the Act, the objection was overruled. It was held that the only condition to be satisfied for passing an order under Section 4-A (3) was statutorily specified therein envisaging an order for a penalty and interest to be made in default of payment of compensation “within one month from the date it fell due”. The liability of the employer to be saddled with an order of “penalty and interest” was dependent only on his ‘default’ and by that, the legislature meant plain and simple ‘default’ as the word ‘default’ used in Section 4-A(3) was not qualified in any manner. It is a taboo to legislate judicially and interpolate the word ‘wilful’ into provisions to create the necessity of a judicial enquiry into the nature of the ‘default’. We agree with the view expressed in Om Parkash v. Ramkali, (supra), that there is no scope for any pleading of parties and for that reason, for evidence on the nature of the ‘default’ and for that reason, no question of framing any issue arises in such a case. Therefore, the contention that the award was vitiated as no issue was framed in the instant case, must fail.
17. The other contention raised was that the accident did not arise in the “course of employment”. In the written statement that legal objection not having been specifically taken, an application was filed in the course of hearing of this appeal to amend the written statement. That was rejected on August 25, 1987. Whatever that may be, even otherwise, we do not think there is any merit in the contention. Firstly, because, in an appeal under Section 30, it is not open to this court to reassess evidence and to reverse any finding of fact reached By the Commissioner, In the instant case, the Commissioner reached the categorical finding that the deceased workman sustained the fatal injuries in the accident arising out of, and in the course of his employment. Secondly, learned Commissioner has rightly held that for the defence taken in the evidence of employer’s sole witness that the employer was not liable to pay compensation on the ground that the injury was not caused “in the course of employment”, burden was on the employer to establish the defence. The employer failed to do so and indeed, the employer withheld the relevant records in that regard, despite its own admission in Exh. P-1 that the deceased was in its employment. If the Muster Roll had been produced, we say, endorsing the view of the learned Commissioner, that would have clearly shown if the workman was not detailed on duty on the fateful day. But that was not produced, even though that was available according to the employer’s sole witness examined in the case.
18. We have no doubt that pursuant to the notice of the claim contemplated under Section 10 of the Act, the letter (Exh.P-1) was addressed on June 21, 1985 to the respondent by the employer asking her to produce appropriate proof of death of deceased workman in support of her claim. It was then open to the employer to take the legal defence and to refute the claim, but that was not done arid instead, the claim was entertained. The employer did not even choose to make a reference to the Commissioner under Section 19 to decide the question of its liability, raised under the notice aforesaid, but pushed the poor and destituted widow and minor children to pursue the remedy available to them under Section 22 of the Act. In these circumstances, the employer was evidently estopped from raising the defence even in his written statement while in this case, even that last opportunity to do so was lost. Instead, a wholly worthless endeavour was made in this court for amending the written statement with the object of obtaining order for a fresh trial in order to protract further the proceedings to the serious detriment of the claimant. We have no hesitation to hold, therefore, that the second contention of the appellants’ counsel that the death of respondent’s husband did not take place in accident in the course of employment, must fail.
19. For all the foregoing reasons, we are of the view that this appeal is meritless and accordingly, it is dismissed.
20. However, in the facts and circumstances of the case, we make no order as to costs.
21. Let the records be sent down forthwith so that the money deposited with the Commissioner is disbursed immediately to the claimants. In this connection, we would like the Additional Registrar to enquire and submit report in chambers why I. A. III filed on October 13, 1987 by the claimant/respondent was not listed in court for orders. She had prayed nine months ago for an order to send back the records as this court had made an order on September 7, 1987 that the sum deposited be disbursed except to the extent of Rs. 2,500/- and that the said amount only shall remain undisbursed pending final disposal of this appeal. She had applied for that order to be given effect, but she had to suffer silently for nine months.