J. N. BHATT, J. ( 1 ) WHETHER appellant-Devibehn widow of workman is entitled to compensation in a claim for compensation under the Workmens Compensation Act 1923 (the Act) for the fatal employment injuries sustained by her husband Dudha Raja and unfortunately whose case is travelling in a long legal conduit pipe for a spell of more than 1 decades. What a travesty of justice ? Appellant has assailed the judgment and award passed by the learned Commissioner for Workmens Compensation at Porbandar in Workmen Compensation Case No. 17 of 1979. A short spectrum of facts leading to the rise of this appeal may be enumerated at this juncture. ( 2 ) ON 2 6/03/1979 deceased workman-Dudha Raja who was working as a door-keeper in Liberty Talkies Porbandar sustained serious accidental injuries arising out of and in the course of his employment culminating in his death on the next day in hospital. The cause of injury and death was heart attack. Widow of the workman for her and on behalf of her minor son inter alia contended that they are dependents of the deceased workman and that the deceased was earning monthly wages of Rs. 165. 00. Therefore the original applicants claimed an amount of Rs. 16800. 00 plus costs and interest from the original opponents. ( 3 ) ORIGINAL opponent inter alia contended by filing written statement at Exh. 12 that though the deceased workman Dudha Raja was employed as a workman on the date of heart attack he was not victim of employment injury. It was denied that on 26-3-1979 deceased workman had sustained employment injuries in the course of employment by accident. It was also denied that on account of such injury on the next day the workman died. No doubt it was admitted that the deceased workman had expired as a result of heart attack but it was contended that there was no nexus between the death and the employment of the workman. It was further contended that the deceased workman had died as a natural result of the disease from which he was suffering and therefore it could not be said that his death was caused out and in the course of his employment. Thus the entire claim was disputed. ( 4 ) THE learned Commissioner had framed the issues arising out of the pleadings of the parties at Ex. 16. Thus the entire claim was disputed. ( 4 ) THE learned Commissioner had framed the issues arising out of the pleadings of the parties at Ex. 16. The original applicants relied on evidence of six witnesses. The oral evidence of applicants is consisted of the following six witnesses : (1) Devibehn Dudha original applicant widow of the deceased. (2) Kala Maya Co-worker. (3) Hemendra Ratilal Co-worker. (4) Dr. U. G. Nathawani. (5) Dr. Navinchandra Joshi Medical Officer. (6) Dr. A. M. Ruparel. The opponents have relied on the evidence of the following two witnesses : (1) Prabhashanker Joshi Manager. (2) Gandalal Tribhovandas Thakkar husband of opponent No. 2. The parties have also relied on the documents to which reference would be made as when required at the proper stage. ( 5 ) UPON appreciation of the facts and circumstances and evidence the learned Commissioner dismissed the application on 27/03/1981. The learned Commissioner held that the original applicants failed to prove that the heart attack was caused by the accident and that it is arising out the employment. It was also found that the accident had not arisen in the course of the employment of the workman. The application for compensation came to be dismissed. Hence the original applicants have now come up before this Court challenging its legality and validity. ( 6 ) FIRSTLY the following admitted facts may be enumerated : (1) That deceased-Dudha Raja was a workman; (2) That he was working as a door-keeper in Liberty Talkies at Porbandar; (3) That the deceased-workman was working for more than 14 to 15 hours a day in the theatre; (4) That he was earning Rs. 165. 00 per month; (5) That he had suffered a heart attack when he was on duty on 26/03/1979; (6) That the heart attack sustained by the workman while he was on duty resulted into his death on the next day like that 27/03/1979; (7) That the deceased-workman was suffering from tuberculosis; and (8) That the applicant-Devibehn is the widow of the deceased and minor Piyush is the son of the deceased and they are the dependents of the deceased. ( 7 ) THE entire linchpin of the controversy between the parties is as to whether there was any nexus between the heart attack sustained by the deceased-workman and the employment. ( 7 ) THE entire linchpin of the controversy between the parties is as to whether there was any nexus between the heart attack sustained by the deceased-workman and the employment. In other words the main point in focus is as to whether the personal injuries sustained by the deceased was by accident arising out and in the course of his employment. Thus it is required to be examined as to whether the claimants are entitled to invoke the aids of the provisions of Section 3 of the Act whereby employer could be held liable for the payment of compensation. ( 8 ) SECTION 3 of the Act is the most important provision in the whole scheme providing for payment of compensation by employer. The amount of compensation varies according to the nature of injury. The compensation has to be awarded in view of the scheme of the Act depending upon the type of injury and the extent of disablement. In the event of vital injury the dependents are entitled to claim compensation. Injury must be suffered by the workman in the course of employment which has reference to time place and circumstances of the employment and there ought to be casual nexus between the injury and the employment. The section phrase arising out of and in the course of employment is understood to mean that the injury has resulted during the course of employment from some risk incidental to the duties of the job which unless engaged in the duty owing to the master it is reasonably to believe the workman would not otherwise have suffered. In short there must be a casual relationship between the employment and the accident or injury. If the accident had occurred on account of a risk which is incidental to the employment the claim for compensation will succeed. ( 9 ) THERE has been a great deal of debate with regard to the use of the term accident in the phrase personal injury by accident arising out the employment in Section 3. An accident is something which is inforeseen and as has been noted the element of event being inforeseen by the injured workman forms the basis of every right of recovery. It is evident that the word must be taken to be descriptive of the mental state of the employee at the time of the calamity. An accident is something which is inforeseen and as has been noted the element of event being inforeseen by the injured workman forms the basis of every right of recovery. It is evident that the word must be taken to be descriptive of the mental state of the employee at the time of the calamity. The word accident is used in the Act in the popular and ordinary sense of the word as denoting for exhibiting an unlooked-for mishap or an untoward or unexpected event which is not designed. Any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence or any unintended and unexpected occurrence must be looked at from the workmans standpoint and whatever its cause or original it will be accidental unless it was designed by the workman himself. The event should be unexpected in the sense that a sensible man would not have expected it from the nature of the work being done and it is not correct to ask whether a medical man knowing the condition of the workman would have expected it. ( 10 ) THE important thing which requires to be noted is the language of the provisions of Section 3. It is not personal injury by an accident but personal injury by accident. It shows personal injury not by design but by accident by some mishap unexpected and unforeseen accidental personal injury. It is also a settled proposition that accident manifests and includes any unforeseen personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence. Lord Lindley in Fenter v. Thorley and Company (1903) AC 443 has observed speaking generally but with reference to legal liabilities an accident means any unintended and unexpected occurrence which produces hurt or loss. Lord Dunedin has observed that in reference to the injury as to whether the injury arose out of the employment that a test which is more directly useful to certain classes of circumstances is this : Was the risk one reasonably incidental to employment ? Lord Dunedin has observed that in reference to the injury as to whether the injury arose out of the employment that a test which is more directly useful to certain classes of circumstances is this : Was the risk one reasonably incidental to employment ? Not only that the case is still within the definition of accident however where appears that the employee precipitated the calamity by his own act the consequences of the act not being foreseeable by him; or where it is shown that the injuries consequences were intended by some third person then in such a situation also it could be said to be an accident. ( 11 ) WHILE considering the ambit and scope of Section 3 of the Act it should also be observed that the pre-existing disease and the same is accelerated on account of the work which could be said to be accidental but death is one resulting from injury by accident. Death of a workman due to heart attack caused by strain of employment means two personal injuries and the dependents are entitled to compensation under the scheme of Section 3 of the Act. A strain or rupture resulting from over exertion is an injury for which compensation ought to be allowed. Not only that the cumulative effect of a number of slight injuries resulting into detail or incapacity could also be said to be personal injury by accident. ( 12 ) SECTION 3 of the Act prescribes that the accident must arise out of and in the course of the employment of the workman. It is very well settled that the accident in order to give rise to claim for compensation must have some casual relationship to the workmans employment and must have occurred on account of a risk which is incidental to employment. It is very well settled that the accident in order to give rise to claim for compensation must have some casual relationship to the workmans employment and must have occurred on account of a risk which is incidental to employment. In short in view of the relevant case law the following material and significant principles for claiming compensation should be borne in mind : (1) There must be a casual connection between the injury and the accident and the work done in the course of the employment; (2) Onus is upon the applicant to show that it was the work resulting strain which contributed to or aggravated the injury; (3) It is not necessary that the workman should be actually working at the time of his death or that the death must occur while he is working or that he had ceased to work; and (4) When the evidence is balance and if the evidence shows the greater proposition which satisfies a reasonable amount that the work contributed to the causing of the personal injury it would be sufficient for the workman to succeed. ( 13 ) IN view of the aforesaid celebrated (sic.) proposition of law and the evidence on record the impugned judgment and award of the learned Commissioner are not only fallacious but are also found illegal. Learned Advocate for the respondents however has contended that there is no evidence to show that there was a direct nexus between the death and the employment of the deceased. This contention is questioned by the learned Advocate appearing for the appellants. ( 14 ) A close look into the evidence is necessary so as to appreciate the merits of the aforesaid contention. The widow of the deceased Devibehn is examined at Ex. 23 who has testified that her husband was working in a theatre around 14 hours a day and night. Incident took place on 26-3-1979 at 4. 30 p. m. when the deceased workman sustained chest pain and was brought at the residence for treatment by one co-worker Kala Maya. Firstly Dr. Ruparel examined the deceased and treated him. Subsequently under the medical advice the deceased workman was shifted to Government hospital. On the next day like that 27-3-1979 the workman had passed away. Co-worker Kala Maya is examined at Ex. 26. Firstly Dr. Ruparel examined the deceased and treated him. Subsequently under the medical advice the deceased workman was shifted to Government hospital. On the next day like that 27-3-1979 the workman had passed away. Co-worker Kala Maya is examined at Ex. 26. He stated in his evidence that the deceased was leaving his house for work around 9 oclock morning and he was working in the talkies till late night i. e. 12. 30 or so with a lunch break of one or one and a half hours. Witness Hemendra Ratilal Thakker is examined at Ex. 27. He was also working in the theatre at the relevant time along with the deceased. He has explained the nature of duties of the deceased. According to the evidence of this witness deceased had to wait near the door as a Door-keeper and he had to check the tickets. Thereafter he had to lead the cinegoers to their seats. There were 10 rows with 30 seats in each row. After the starting of the cinema the deceased had to set on a stool without any support continuously. It becomes clear from the evidence of Kala Maya and this witness H. R. Thakkar that the deceased Dudhabhai was doing the work of two persons. ( 15 ) THE employer relied on the evidence of Manager Prabhashanker Joshi at Ex. 50 and one T. T. Thakkar at Ex. 53. The functions of a Door-keeper and the duties which were performed by the deceased workman explained by co-worker Kala Maya and Hemendra Ratilal Thakkar came to be reinforced by the evidence of Mr. Joshi and Thakkar witnesses of the employer. ( 16 ) IN fact according to the evidence on record it is found that except a lunch break of an hour the deceased used to work almost for 15 hours a day from 9 in the morning to 1 oclock next day morning including commutation period. Obviously the learned Commissioner has failed to appreciate the fatigue and the exertion and the tear and wear suffered by the deceased for a spell of 15 years by doing the job of two persons. ( 17 ) DR. U. G. Nathawani is examined at Ex. 33. He has stated in his evidence that the deceased was treated in an emergency and the Civil Surgeon was informed about it. ( 17 ) DR. U. G. Nathawani is examined at Ex. 33. He has stated in his evidence that the deceased was treated in an emergency and the Civil Surgeon was informed about it. On the next day cardiogram was taken and then a conclusion was reached that there was a heart attack like that myocardia infarction. The deceased had suffered heart attack at about 4. 30 p. m. on 26-3-1979 and he passed away at about 11. 15 a. m. on the next day like that 27 It is clearly testified by Dr. Nathawani that in case of weak heart a little strain can also accelerate the death. ( 18 ) MEDICAL Officer Dr. Navinchandra Joshi is examined at Ex. 46. He had conducted post-mortem. According to him the deceased workman had died because of myocardial infarction like that heart attack. Dr. Amratlal Ruparel is examined at Ex. 49 He has also stated that he had examined the deceased and he found that the deceased had become a victim of heart attack. He was cross-examined probably to suggest that because of his wrong treatment the deceased suffered more. The medical evidence on record does not justify the suggestion that the deceased had suffered due to wrong treatment. On the contrary it is evident from the evidence that the cause of death was due to myocardial infarction. ( 19 ) THERE was also suggestion from the employer in the medical evidence of Dr. Nathawani at Ex. 33 that the deceased was suffering from tuberculosis. Dr. Nathawani has admitted in his evidence that since the deceased had two conjested lungs it was possible to held that the deceased was suffering from tuberculosis since long. It is also stated by him in the cross-examination that there will be gradual effect on the heart on account of long standing tuberculosis. It appears thus that the deceased was suffering from tuberculosis. The Medical Officer Dr. N. N. Joshi at Ex. 46 has clearly testified that myocardial infarction means heart attack and due to heart attack there will be pain in the heart region. It is also clearly stated by him that the chest pain could be caused even by little strain or stress in such a situation. The Medical Officer Dr. N. N. Joshi at Ex. 46 has clearly testified that myocardial infarction means heart attack and due to heart attack there will be pain in the heart region. It is also clearly stated by him that the chest pain could be caused even by little strain or stress in such a situation. It is also clearly testified by him that the Door-keeper has to check the tickets and has to lead the persons to the chair and such activities would involve strain and fatigue and it also causes pain in the chest and it can accelerate death. A suggestion was also put to Dr. Joshi on behalf of the employer that a tuberculosis patient normally remains weak and he is more susceptible to develop myocardial infarction as sustained by the deceased. It is also admitted by him that on account of tuberculosis and conjestion of lungs the heart becomes weak and it is likely to develop myocardial infarction. ( 20 ) IT could very well be appreciated from the medical evidence on record that the deceased had sustained myocardial infarction on account of conjested lungs and strain and exertion would accelerate and develop such a disease and it had culminated into his death. Unfortunately this aspect is seriously overlooked by the learned Commissioner. A man who had to work for more than 15 hours a day and that too for a long spell of 15 years having tuberculosis ought to have contributed and accelerated the emergence of myocardial infarction which culminated into his death. In such a situation it cannot be said that there was a natural death. The learned Commissioner has to approach and appreciate the evidence leniently and liberally. The strict principles of Evidence Act applicable to a criminal matter are not required to be employed. A reasonable inference can also be drawn arising from the circumstances. In Bai Diva Kaluji v. Silver Cotton Mills Ltd. AIR 1956 Bombay 424 Chief Justice Chagla awarded compensation to a workman who after working for eight hours on a hot day in a mill died by a heart failure. Chagla C. J. speaking for the Division Bench observed that there are occasions when the Court is compelled to draw inference which naturally inevitable and arises from such evidence as there is on the record. Chagla C. J. speaking for the Division Bench observed that there are occasions when the Court is compelled to draw inference which naturally inevitable and arises from such evidence as there is on the record. The mere paucity of evidence should not relieve the Court of its obligation to come to a conclusion on necessary and material issues. It was also observed in the said decision that mere paucity of evidence should not relieve the Court of its obligation to come to a conclusion on vital issues. . ( 21 ) NOW the question which requires to be examined and adjudicated upon is as to whether the accident in question arose out of the employment like that whether the original applicants have successfully established the nexus between the work and the injury or the casual connection between the work and the injury. The clear case of the original applicants is that the deceased workman Dudhabhai died of heart attack. The employers case is that the workman died of chest pain and not of an accident arising out of and in the course of his employment. The provisions of Section 3 of the Act clearly provide that if personal injury is caused to a workman by an accident arising out of and in the course of his employment his employer is liable for the payment of compensation. The main ingredient of expression accident is unexpectedness. The second ingredient however has been added in many judicial pronouncements. The injury must be traceable within reasonable limits to a definite time place and occasion or cause. Larson in his Workmens Compensation Law Vol. I while dealing with heart diseases observed at page 548 as follows : in the heart cases the issue almost from the start has centred about the question whether there was anything unusual about the exertion producing the attack or the circumstances surrounding it. Tracing the course of the disease Larson cited the decision in Massee v. James H. Robinson Company 301 NY 34 where the following statement had been made - a heart injury such as coronary occlusion or thrombosis when brought on by over-exertion or strain in the course of daily work is compensable though a pre-existing pathology may have been a contributing factor. Larson concluded thus again quoting from a judgment : however whether an event is to be found as industrial accident is not to be determined by legal definition but by common sense viewpoint of the average man. Hence the issue almost invariably falls within the realm of fact and if the facts and circumstances sustain upon any reasonable hypothesis the conclusion that an average man would view the event as accident then the determination of the board is final. Applications of this principle though often not expressed are inherent in many decisions. ( 22 ) THUS it could very well be said that acceleration or aggravation of an employees heart condition thereby causing death or disability may constitute a compensable injury within the meaning of the Workmens Compensation Act. The sudden manifestation of the heart condition from the effect of strain or over-exertion at work constitutes an accidental injury within the meaning of the Act. Again it also may be noted that in a review of the entire relevant case law on the point it is desirable and it would be in accordance with the general rule that the provisions of the Workmens Compensation Act should be broadly and liberally construed so as to advance the evident intent and purpose and not to retard them. The Court should therefore favour adoption of liberal and lenient construction of words by accident arising out of and in the course of his employment. ( 23 ) IT would be also appropriate to refer to a decision of the Division Bench of this Court in B. M. Sodha v. Hindustan Tiles (1966) 2 LLJ 15 in which the following principle is laid down while dealing with heart cases : the sudden collapse of the worker after he suffered this injury resulting in his chest pain was clearly the result of his work connected with the work he was doing. In fact this was a clear case where the old age got coupled with the employment and therefore the employment was a contributory cause and the casual connection being established the conclusion was inescapable that the accident arose out of and during the course of the employment. In fact this was a clear case where the old age got coupled with the employment and therefore the employment was a contributory cause and the casual connection being established the conclusion was inescapable that the accident arose out of and during the course of the employment. Unless there were circumstances to the contrary it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time and it would also be nature to presume that if such work involved some strain this disease infirmity or old age that was existing was likely to contribute to or accelerate the death. In such cases the per existing disease infirmity or old age is the per-eisposing factor which will supply the necessary casual link to make this a work-connected injury if death takes place while the workman is engaged in his normal work. ( 24 ) IN the light of the facts and circumstances emerging from the record of the present case while viewed in the background of the relevant case law it has got to be held that the workman-Dudhabhai died of heart attack and there was a pre-existing disease of tuberculosis which was accelerated and aggravated by the strain and exertion of the work which the deceased was doing and has culminated in his death then the failure of heart had a direct nexus with the employment which the deceased was doing for more than 14 to 15 hours a day. Therefore the injury sustained by the deceased had arisen out of and in the course of his employment with his employer and therefore it is compensable in accordance with the provisions of Section 3 of the Workmens Compensation Act. ( 25 ) THE reliance is placed by learned Advocate for the appellants-original claimants on a decision of this Court rendered in Shantabehn Thakore v. New Raipur Mills Company Limited AIR 1968 (Guj.) 113 . This decision fully supports the version of the claimants. ( 25 ) THE reliance is placed by learned Advocate for the appellants-original claimants on a decision of this Court rendered in Shantabehn Thakore v. New Raipur Mills Company Limited AIR 1968 (Guj.) 113 . This decision fully supports the version of the claimants. It would be pertinent to refer the following important observations made by A. R. Bakshi J. (as he then was) in that decision : there is thus sufficient and binding authority to hold that it is not necessary for the dependants of a deceased workman to establish that the deceased was engaged in some exceptional work of a particular kind which placed excessive strain on the deceased so as to result in his death. If the work that the workman was doing was likely to accelerate death it could be said that the casual connection between the injury and the accident was established and the accident and the work done were in the course of employment. The contention is made that there must be positive evidence to show that death was not caused by the disease but an excessive strain of doing a particular work in which the workman was engaged at the time of his death cannot therefore be accepted. The question whether that the evidence in a particular case was sufficient to create the liability of the employer for compensation would no doubt depend upon the fact whether the evidence was of such tendency and probability that it would satisfy a reasonable man that the work contributed to the causing of the injury or that the workman was engaged in such activity that was likely to cause such strain and would accelerate his death. We are of the view that a pre-existing disease or infirmity would not by itself disentitle the dependants of the deceased workman from claiming compensation and that the existence of such disease or infirmity would not by itself negative the possibility of the existence of a casual connection which is required to prove a claim for compensation. We are of the view that a pre-existing disease or infirmity would not by itself disentitle the dependants of the deceased workman from claiming compensation and that the existence of such disease or infirmity would not by itself negative the possibility of the existence of a casual connection which is required to prove a claim for compensation. We are also of the view that unless there were circumstances to the contrary it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time and that it would also be natural to presume that if such work involved some strain the disease that was existing was likely to be aggravated provided there was some evidence to support such a finding. Further it would not be necessary for the claimant to establish specifically that the deceased at the relevant time was working on a particular job which exercised upon him such strain that resulted in his death. The real question in such cases would be whether the deceased had whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death. ( 26 ) LEARNED Advocate Mr. Nanavati for the respondent-employer has placed reliance on a decision of this Court rendered in Divisional Controller GSRTC v. Bai Jivibehn Arjan 21 GLR 39 It was held in this case that there must be a casual connection between the accident and the work. Sudden heart attack resulting into death without previous history cannot be said to be due to the exertion of employment. On facts and circumstances the said decision is inapplicable to the facts of the present case. In the present case the deceased had to work for more than 14 to 15 hours a day right from early morning 9 oclock to early morning next day with a lunch break only. The deceased was working as a Door-keeper for a spell of more than 15 years. It is the case of the employer that the deceased was suffering from tuberculosis. The pre-existing disease of tuberculosis was sufficient to damage the heart. The deceased was working as a Door-keeper for a spell of more than 15 years. It is the case of the employer that the deceased was suffering from tuberculosis. The pre-existing disease of tuberculosis was sufficient to damage the heart. In such a state of health if a person has to work for more than 14 to 15 hours a day without rest except for a short break of lunch and considering the nature of duties of the deceased the same would obviously accelerate death on account of exertion and strain. Even for a healthy man if he works for more than 14 to 15 hours a day without rest except for a short break of lunch would have many physiological adverse effects. ( 27 ) IT was also contended that the workman had not died in the premises and he had simply chest pain while he was working in the morning shift in the theatre. Therefore it is contended that death resulting due to heart attack cannot be said to be compensable. This submission cannot be accepted. It is not mandatory that the death due to injury should result only in the factory or the industrial premises. It is also not necessary that the death should be the result of one accident. The workman may be suffering gradually due to working the employment and if the cumulative effect of slight injuries is death then also such an injury is compensable and is covered by provisions of Section 3. In Bunell v. Selvage 1921 0 KB 355 a workgirl was incapacitated not as the result of one accident but as the result of poisoning due to the cumulative effect of a manner of cuts and scratches extending over some months work. It was held that she had sustained personal injury by accident. Lord Buckmaster had observed in that case : It cannot be disputed that her cut and abraised fingers were on such occasion what would be called an accident within the meaning of the statute. The only question therefore for consideration is whether when the disease is due not to one specific and definite accident but to a series of accidents each one of which is specific and ascertainable though its actual influence on the resulting illness cannot be precisely fixed the workman is disentitled to the benefit of the statute. The only question therefore for consideration is whether when the disease is due not to one specific and definite accident but to a series of accidents each one of which is specific and ascertainable though its actual influence on the resulting illness cannot be precisely fixed the workman is disentitled to the benefit of the statute. I cannot find any words in the statute which permit of such a construction. In the present case personal injury was suffered it was suffered by accident and the accident is no less accidental because it occurred on a series of occasion instead of on one. Therefore in such a situation the employer becomes liable to pay the compensation as such an injury is caused to the workman by the accident which arose out and in the course of an employment. ( 28 ) THE next contention of learned Advocate Mr. Nanavati is that there was compromise between the employer and the heirs of the deceased employee and the claim was satisfied and therefore it is contended that this appeal does not survive. He has also produced withdrawal purshis purported to have been signed by the widow and the minor son of the deceased workman. As per this purshis the appellants have stated that they are withdrawing the appeal. This submission is seriously countered by learned Advocate Mr. Buch for the appellants. A written reply duly signed by the appellants is also placed on record. ( 29 ) IN reply to the alleged settlement dated 16 produced by the respondents in this Court on 14-11-1990 it is stated that the alleged settlement was obtained by misrepresentation by the respondents. It is further contended by the widow for herself and on behalf of the minor son that the respondent had at the time of obtaining her signature represented to her that the respondents were going to close down the theatre and they intended to go out of business from Porbandar and therefore they were prepared to pay about Rs. 5 0 to 6 0 to each and every workman of the particular talkies towards the termination of their services. It was therefore stated by the respondent that the appellant should accept the amount on behalf of her late husband. The co-workers of the appellants husband were also made to parsed the widow to accept the amount saying that otherwise she will not get anything. It was therefore stated by the respondent that the appellant should accept the amount on behalf of her late husband. The co-workers of the appellants husband were also made to parsed the widow to accept the amount saying that otherwise she will not get anything. It was offered to her towards the retrenchment compensation by giving an understanding that the respondents were closing their business. It is specifically pleaded by the widow of the deceased workman that she was never given to understand that the said amount was offered in lieu of compensation under the Workmens Compensation Act. ( 30 ) THE alleged settlement is not supported by any affidavit whereas the widow of the workman has filed detailed reply to the alleged settlement. No particular of the alleged settlement are stated by the employer. No reasonable explanation is also given as to why the alleged settlement is not brought to the notice of the Court or why it was not produced for a long spell of five years. Considering the facts and circumstances the version of the employer factually does not seem to be correct. Therefore the contention of Mr. Nanavati in this behalf is factually found not sustainable. ( 31 ) ASSUMING that the said contention is factually correct then also the alleged settlement is legally not recognizable in view of the provisions of Sections 8 17 and 28 of the Act. Keeping an eye on the meaning and benevolent provision made in the interest of workmen the Parliament in its wisdom has also made several safeguards against such unscrupulous mischievous and baseless pleas of settlement with the workmen or the dependants. ( 32 ) IT would be interesting at this juncture to refer first to the provisions of Section 8 of the Act. ( 32 ) IT would be interesting at this juncture to refer first to the provisions of Section 8 of the Act. The provisions of Section 8 read as under :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 dependent advances on account of compensation not exceeding an aggregate of one hundred rupees and so much aggregate and 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 sub-Section (1) as compensation in respect of a deceased workman the Commissioner shall deduct therefrom the actual cost of the workmans funeral expenses to an amount not exceeding fifty rupees and pay the same to the person by whom such expenses were incurred and 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 of 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. 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 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 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 case pay the moneys 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 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 whom the Commissioner thinks best fitted to provide for the welfare of the workman. (8) Where on application made to him in this behalf for 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 circumstances of any dependent or for any other sufficient cause an order of the Commissioner as to the distribution of 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 sub-Section (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. ( 33 ) THE provision of this Section is mandatory and is introduced in the Act primarily to safeguard the interest of the dependents of the deceased workman. One of the reasons is that the workman having died leaving dependents who are entitled to receive compensation should be able to obtain their share through the Commissioner. These provisions safeguard the interest of the dependents so that they may not fall a prey to the manipulations and mischievous of the employer or to be subjected to deceit or fraud. Any payment privately made to the dependents cannot be recognized as a proper discharge of the liability on the part of the employer to pay the compensation. The provision of Section 8 has to be followed both in letter and in spirit. Admittedly the aforesaid provisions are not followed so far as the alleged settlement is concerned. ( 34 ) LIKEWISE Section 17 of the Workmens Compensation Act is very important. The provision of Section 8 has to be followed both in letter and in spirit. Admittedly the aforesaid provisions are not followed so far as the alleged settlement is concerned. ( 34 ) LIKEWISE Section 17 of the Workmens Compensation Act is very important. Section 17 reads as under : 17 Contracting out : 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 insofar as it purports to remove or reduce the liability of any person to pay compensation under this Act. ( 35 ) IT is evident from the aforesaid provisions that they provide more safeguard for the ignorant workmen who are susceptible to be induced by their employers. Section 17 protects a poor and ignorant workman who may be induced by an employer to agree to accept less compensation or abandon something to which he is entitled under the Act. Therefore if the employer pays suo motu any amount as ex gratia payment to the workman or to his dependents he does so at his own peril as he will not be entitled to get set off or deduction under Section 8 of the Act. Section 17 provides that the workman of his dependents cannot contract out of the said provision. There is violation of the principles and the provisions of Section 17 of the Act insofar as plea of settlement outside the court by the employer with the appellant is concerned. ( 36 ) SECTION 28 of the Workmens Compensation Act provides registration of agreements compulsory. The provisions of Section 28 are also not observed. There is violation of the principles and the provisions of Section 17 of the Act insofar as plea of settlement outside the court by the employer with the appellant is concerned. ( 36 ) SECTION 28 of the Workmens Compensation Act provides registration of agreements compulsory. The provisions of Section 28 are also not observed. It would be interesting to refer Section 28 at this juncture : 28 Registration of agreements : (1) Where amount of any lump sum payable as compensation has been settled by agreement whether by way of redemption of a half-monthly payment or otherwise or where any compensation has been so settled as being payable to a woman or a person under a legal disability a memorandum thereof shall be sent by the employer to the Commissioner who shall on being satisfied as to its genuineness record the memorandum in a register in the prescribed manner : provided that - (a) no such memorandum shall be recorded before seven days after communication by the Commissioner of notice of the parties concerned; (c) the Commissioner may at any time rectify the register; (d) where it appears to the Commissioner that an agreement as to the payment of a lump sum whether by way of redemption of a half-monthly payment or otherwise or an agreement as to the amount of compensation payable to a woman or person under a legal disability ought not to be registered by reason of the inadequacy of the sum or amount or by reason of the agreement having been obtained by fraud or undue influence or other improper means he may refuse to record the memorandum of the agreement and may make such order including an order as to any sum already paid under the agreement as he thinks just in the circumstances. (2) An agreement for the payment of compensation which has been registered under sub-Section (1) shall be enforceable under this Act notwithstanding anything contained in the Indian Contract Act 1872 (9 of 1872) or in any other law for the time being in force. (2) An agreement for the payment of compensation which has been registered under sub-Section (1) shall be enforceable under this Act notwithstanding anything contained in the Indian Contract Act 1872 (9 of 1872) or in any other law for the time being in force. ( 37 ) THE aforesaid provisions clearly go to show that when a memorandum of an agreement the register of which is required under 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 he is liable to pay under the provisions of the Act. Notwithstanding anything contained in the provision and other provisions of the Act unless the Commissioner otherwise directs the employer shall not be entitled to take more than half of the amount paid to the workman by way of compensation whether in agreement or otherwise. ( 38 ) IN short it can safely be concluded that sufficient safeguards and appropriate safety valves are designed and incorporated in the provisions of Sections 8 17 and 28 of the Act so as to check and frustrate manipulations of the unscrupulous employers and to protect the poor and ignorant workmen and with a view to advancing the design and desiderarum of the entire scheme of the Workmens Compensation Act. In the present case there is a clear breach and violation of the aforesaid provisions. Therefore factually and legally the aforesaid contention advanced by learned Advocate Mr. Nanavati is without any substance and is required to be rejected. ( 39 ) SINCE the appellants-original applicants-dependents are found entitled to the compensation under the provisions of Section 3 of the Act the next question will come into force as to what amount they should be awarded by way of compensation. What should be the amount of compensation is provided in Section 4 of the Workmens Compensation Act. The deceased-workman in the present case died on 27/03/1979. Therefore the relevant provisions then applicable are required to be examined. There is no dispute about the fact that the deceased workmen was earning Rs. 155. 00 per month as a Door-keeper at the relevant time. The conjoint reading of the provisions incorporated in Schedule IV and Section 4 of the Act will make it clear that the claimants will be entitled to an amount of Rs. There is no dispute about the fact that the deceased workmen was earning Rs. 155. 00 per month as a Door-keeper at the relevant time. The conjoint reading of the provisions incorporated in Schedule IV and Section 4 of the Act will make it clear that the claimants will be entitled to an amount of Rs. 16 800 As such this aspect is no longer in controversy. Considering the facts and circumstances and the salary which was paid to the deceased workman at the relevant time the widow and the minor are entitled to an amount of Rs. 16 800 ( 40 ) IT is also contended that the original applicants should be paid 50 per cent penalty of the sum of Rs. 16 800 In other words it is contended that the applicants-claimants should be paid Rs. 8400/- and the employer should be directed to pay by way of penalty for default. The interest is also claimed on the amount of compensation at the rate of 6 per cent per annum on the amount due. In this connection the attention of the Court is invited to the provisions of Section 4-A of the Act. Section 4-A is reproduced hereunder : 4 Compensation to be paid when due and penalty for default : (1) Compensation under Section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed 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 without prejudice to the right of the workman to make any further claim. (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due the Commissioner may direct that in addition to the amount of the arrears simple interest at the rate of six per cent per annum on the amount due together with if in the opinion of the Commissioner there is no justification for delay a further sum not exceeding fifty per cent of such amount shall be recovered from the employer by way of penalty. . . ( 41 ) IT is proved that the employer had not deposited or paid due amount and he has committed default. It is very clear from the provisions of Section 4a of the Act that where an employer is in default in payment the compensation no sooner it fell due within one month thereof the Commissioner has a jurisdiction and authority to award interest as also in addition levy penalty not exceeding 50 per cent of the amount of compensation. There is no reason why the powers under Section 4-A of the Act should not be exercised while awarding the amount of compensation. This is a fit case to exercise the discretionary power in favour of the widow and the minor of the deceased workman. ( 42 ) IN view of the aforesaid discussion the original applicants-appellants herein are found entitled to an aggregate amount of Rs. 25 200 (Rs. 16 800 by way of compensation plus Rs. 8400 by way of 50 per cent penalty under Section 4 with interest at the rate of 6 per cent. The original opponents-respondents herein-employer shall pay an amount of Rs. 25 200 by way of compensation with interest at the rate of 6 per cent per annum from the date of application till payment. Having regard to the facts and circumstances emerging from the record while viewed in the light of the relevant proposition of law this appeal is required to be allowed with costs. In the result the appeal is allowed. The impugned order of learned Commissioner is quashed and set aside. .