Chhatiya Devi Gowalin v. Rup Lal Sao — 1978 DIGILAW 73 (PAT)

Judgment Chaudbary Sia Saran Sinha, J. 1. This miscellaneous appeal arises out of the order dated 7th August, 1976 of the Presiding Officer, Labour Court and commissioner under the Workmens Compensation Act, 1923, Patna, appellant no.1 being the widow and appellant no.2 the minor son of one Basudev Yadav, an employee under respondent no.1, Rup Lal Sao. 2. The short facts of this case, relevant for disposal of this appeal, lie in a narrow compass. Basudev Yadav above named, was an employee under respondent no.1, who runs a transport business and who possesses a public carrier bearing no. BRB 1109. The deceased Basudev Yadav worked as Khalasi in the said public carrier and while engaged as such, in course of employment, the said public carrier met within an accident on 24th May, 1971, in which the decased sustained serious injuries resulting in his death at the place of accident is self. Notice as required under sub-section (1) of section 10 of the workmens Compensation Act, 1923 (hereinafter referred to as the Act) was given to the respondents, respondent no 2 being the Insurance Company, stating that at the time of the death, the deceased was drawing a salary of Rs.150 per month besides an allowance of Rs.4 per day. Thereafter the two appellants preferred their written claim to the Collector, Gaya, in which they prayed to be allowed a sum of Rs.3,500 only or any sum or sums which might bo deemed fit and proper by way of compensation under the Act. It appears that the Collector Gaya noticed the two respondents and subsequently when the matter became contested, the petition was referred to the presiding officer labour Court, Patna, who is also the Commissioner under the Act. 3. The claim of the appellants, for compsnsation, was disputed by the two respondents before the presiding officer, Labour Court on various grounds, but it may not be necessary to deal with them in view of the limited contentions raised before this court. In short, the Presiding Officer, Labour Court, found that the deceased, Basudev Yadav, was a permanent employee of respondent no.1, working as khalasi in the public carrier in question and that he died in an accident in course of his employment. The further finding was that the deceased was drawing a salary of Rs.150 per month under respondent no.1 at the time of the accident. The further finding was that the deceased was drawing a salary of Rs.150 per month under respondent no.1 at the time of the accident. On these findings, he held the appellant entitled to recover Rs.35,00, initially from respondent no.1 and in case of their failure to recover the same from respondent no.1, they were held entitled to realise the same from respondent no.2. 4. While the two respondents have not preferred any appeal against the impugned order, the appellants have come up in this court in an appeal under section 30 of the Act. 5. The contention on behalf of the- appellants is that the monthly salary of the deceased having been found to be Rs.150 by the Presiding Officer, labour court, as statutorily required, the appellants should have been allowed a compensation amounting to Rs.7000, as provided in the Act and, therefore, by allowing a compensation of Rs.3,500 only in the impugned order, the labour court has committed an error of law and as such the appellant should be held entitled to realise Rs.7,000 from the respondents and the impugned order should be modified accordingly. 6. Learned counsel for respondent no.1 has ressited this contention of the learned, counsel for the appellants, though none has appeared on behalf of respondent no 2.1 he contentions raised by learned counsel for the parties, raise certain subtle points of law and in order to appreciate them, it may be necessary to examine the scheme of the Act. The term "compensation" has been defined under section 2 (c) of the Act as meaning compensation as provided for by this Act. Schedule IV to the Act states about the fixed amount of compensation payable in certain cases, as mentioned therein. It is undisputed that prior to the amendment of Schedule IV to the Act 65 of 1976, this schedule provided a lump-sum compensation of Rs.7,000 for a workmen in case of his death in course of employment, if he was drawing a monthly salary of Rs.100 to 150 as monthly wages. It is undisputed that prior to the amendment of Schedule IV to the Act 65 of 1976, this schedule provided a lump-sum compensation of Rs.7,000 for a workmen in case of his death in course of employment, if he was drawing a monthly salary of Rs.100 to 150 as monthly wages. Sub-section (1) (a) of section 4 of the Act provides, inter alia, that subject to the provisions of this Act the amount of compensation, where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV, it shall be the amount shown against such limits against the second column thereof. It would thus appear that the amount of compensation allowable under the Act has been fixed by the statute itself thereby leaving no option to the Compensation Commissioner but to allow compensation as fixed by the statute once he holds the employee or his heirs entitled to claim compensation allowable; under the Act. While providing for settlement of compensation by agreement, section 28 (8) (l) (d) entitles the commissioner not to register the same in the circumstances mentioned therein which include the inadequacy of the sum or amount of compensation agreed upon and section 29 provides that where a memorandum of any agreement, the registration of which is required by section 28, is not sent to the Commissioner as required by that section, the employer shall be liable to pay the full amount of compensation which is liable to pay under the provisions of that Act. The instant case is not a case where compensation has been settled by agreement and the provisions of the two sections have been referred to simply to show the intention of the framers of the Act in the matter of the liability of the employer to pay the compensation as filed by the Act itself. Sub-section (1) of section 10 speaks of notice of accident as also the preferring of claim. As the statute itself fixes the amount of compensation payable, the notice, of accident in sub-section (1) of section 10 of the Act would mean the notice of the details of the accident and it may not be necessary to set out the details of any ascertained amount of claim. As the statute itself fixes the amount of compensation payable, the notice, of accident in sub-section (1) of section 10 of the Act would mean the notice of the details of the accident and it may not be necessary to set out the details of any ascertained amount of claim. Coming to the word "claim" used in section 10 (1) of the Act, it came up for consideration in the case of central Engineering Corporation V/s. Dorai Raj, (AIR 1960 Orissa 39) and his lordship observed that : "the word claim referred to in sections 22 and (10) (1) does not refer to a claim made on the employers but denotes a formal claim made before the commissioner. " Consequently the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim and the proviso to clause (b) of section 10 (1) of gives jurisdiction to the Commissioner to entertain and decide any claim to compensation in any case notwithstanding that notice has not been given. It is in this context that we have to construe the meaning of the term "claim" as appearing in section 30 (1) (a) of the Act. Order II, rule 2 of the code of Civil Procedure provides, inter alia, that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action ; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. The further provision therein is that where a plaintiff intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Sec.23 of the Act as also rule 41 of the Workmens Compensation rules make provision for the applicability of certain provisions of the Code of Civil Procedure in proceedings under the Act but they do not include the provisions of Order II of the Code of Civil Procedure, 7. In the application filed by the two appellants, they prayed for being allowed a sum of Rs.3500 only or any sum or sums which might be deemed fit and proper. This indicates ignorance on the part of the appellants about the exact amount of compensation to which they were statutorily entitled. In the application filed by the two appellants, they prayed for being allowed a sum of Rs.3500 only or any sum or sums which might be deemed fit and proper. This indicates ignorance on the part of the appellants about the exact amount of compensation to which they were statutorily entitled. No question of any waiver may arise in cases like the one under consideration. Learned counsel for the appellants cited in this connection the decision in the case of Abdul Waheed Khan Pathan Saudhagar V/s. Mrs. Reny Charles favey and another, AIR 1965 Mysore 303), wherein it was held that - "it may be stated as a general rule that if the statute is solely for the benefit of a person, he may waive his right or the benefit, if he thinks fit, or give up the rights of a personal or private nature created under an agreement, but he cannot waive a benefit conferred by a statute which has public policy for its object. Therefore, where a prohibition or interdiction is absolute in respect of a provident fund standing to the credit of a subscriber, it is not open for a person to circumvent the provisions of law by entering into an agreement. It is not, therefore, open for the dependant to waive his right and agree to have the amount -brought into the court for payment to the decree-holder in satisfaction of his decree". The facts of the case of Krishan Dev V/s. Smt. Ram Piari, (AIR 1964 Himachal pradesh 34) relied upon by the learned counsel for the respondent to show the meaning of the word "acquiescence", are entirely different and this decision can be of no assistance to him. On the other hand a Division Bench decision of the Kerala High Court in the case of K. P. Kurian V/s. Managing Partner hindustan Shipping Co, reported in 1975 Labour and Industrial Cases 130 fully supports the appellants. It was held in this case that the fact that the injured workman has claimed only a lesser amount than that to be arrived at as per Schedule IV is not a relevant point for consideration in arriving at the amount of compensation. It was held in this case that the fact that the injured workman has claimed only a lesser amount than that to be arrived at as per Schedule IV is not a relevant point for consideration in arriving at the amount of compensation. It was further held that there may be cases where the injured workman, because of his ignorance, puts forward a claim for lesser amount but even in these cases the Commissioner will not be justified in giving an award for an amount which is less than that to which, -under the Act, the injured workman is entitled. 8. The next question is whether an appeal can competently lie at the instance of a person whose claim, as asked for by him, has been allowed by the Commissioner. The answer to this question can be given only after considering the statutory provisions as contained in the Act, the scheme thereof and the public policy behind it. Formg in the Workmans Compensation Rules, 1924, is a prescribed form for application to deposit compensation. Column 6 of the said form states, inter alia, that the applicant is entitled to receive a lump sum of Rs. . . . . ,. which has to be mentioned by the appellant. This form does not end there. Its last paragraph states as follows : - "you are, therefore, requested to award to the applicant the said compensation or any other compensation to which he may be entitled. " The contention of learned counsel for the appellants was that the instant appeal would be competent in clause (a) of sub-section (1) of section 30 of the Act which provides an appeal against an order awarding as compensation a lamp sum and in support of this contention he relied on the decision of this Court in Bhurangya Coal Co. Ltd. V/s. Sahebjan Mian and another (AIR 1956 Pat.299) wherein it was held that : ". . . order of the Commissioner directing the employer to pay a sum of rs.2000 to the claimant as compensation was one for a lamp sum compensation. Therefore, on that ground alone, the order had to be held as appealable under section 30 (1) (a ). . . order of the Commissioner directing the employer to pay a sum of rs.2000 to the claimant as compensation was one for a lamp sum compensation. Therefore, on that ground alone, the order had to be held as appealable under section 30 (1) (a ). " The facts of this case is different from the facts of the instant case, inasmuch as in the case reported in AIR 1956 Patna 299 (Supra) an appeal had been preferred by the employer whereas in the instant case the appeal is at the instance of the heirs of the employee. The contention of leamed counsel for the appellants, however, was that there was nothing in that clause to restrict its application only to the employer and under appropriate circumstances even aa employee or his heirs, if aggrieved with the order awarding compensation, can legitimately come up in appeal under that part of section 30 of the Act. This contention can not be said to be without force. This apart, the other part of section 30 (1) (a) of the Act provides an appeal against an order disallowing a claim in full or in part for a lump sum. The contention of learned counsel for the respondent was that this clause cannot come to the rescue of the appellants as they claimed only Rs.3500 and thus no portion of their claim was disallowed. If the word claim mentioned in section 30 (1) (a) of the Act is to be understood and interpreted in the context of the scheme of the Act which has been dis;ussed above, it would be manifest that though the appellants were entitled to claim a compensation of Rs.7000, they were allowed only sum of Rs.3500 and thus the full amount to which they were entitled, was not allowed to thom and that being so, the instant appeal would be competent. No other contention having been raised in this connection, negativing the contention raised by learned counsel for the respondents, this appeal is held to be competent. 9 On the facts and in the circumstances discussed above, the appellants are held entitled to recover Rs.7,000 initially from respondent no.1 and in case they fail to recover the same from respondent no.1, they are held entitled to realise the same from respondent no.2, in accordance with law. 10. 9 On the facts and in the circumstances discussed above, the appellants are held entitled to recover Rs.7,000 initially from respondent no.1 and in case they fail to recover the same from respondent no.1, they are held entitled to realise the same from respondent no.2, in accordance with law. 10. In the result, the appeal is allowed and the impugned order is modified accordingly. In the peculiar facts and circumstances of this case, there will be no order as to costs of this appeal. Appeal allowed.