1. This is an appeal from an order made on 10-1-1950 by the Comr. for Workmen's Compensation. It arises out of the following facts.
2. One Donald A. Dias was a workman employed by the resp. as a foreman. On 27-11-1948, he received injuries. He died on the same day from the injuries. On 8 12-1948, the widow & other relations of the deceased received Rs. 3000 from the resp. & gave a receipt. In that receipt they stated that they never had any claim by way of compensation or otherwise against the resp. for the accidental death of the deceased or for any arrear of salary or other remunerations payable to trim & they acknowledged having received from the resp. a cheque for Rs. 3000 as an ex gratia payment. Thereafter the widow made a claim before the Comr. The Comr. made a decree for Rs. 475 in favour of the widow. The Comr. has found that the injury arose out of & in the course of the employment. There is no cross objection or cross appeal challenging this finding. The Comr. thought that the right amount to award was Rs. 3500. But he took into consideration the sum of Rs. 3000 paid by the resp., as I have stated above, & deducting that amount from the amount which he thought was the right amount of compensation payable, he made a decree for Rs. 475 & costs Rs. 22-4.
3. The question before us is as to whether this Sum can be deducted from the sum of Rs. 3500. Section 8, Workmen's Compensation Act, is as follows
'(1) No payment of compensation in respect of a Workman whose injury has resulted in death, & no payment of lump sum as compensation to a woman or a person under a legal disability shall be made otherwise than by deposit with the Comr. & 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, & so much of such aggregate as does not exceed the compensation payable to that dependent shall be deducted by the Comr. from such compensation & repaid to the employer.'
It is quite clear from this section that even if the sum of Rs. 3000 had been paid to the applt. by way of compensation that amount could not be deducted from the actual amount of compensation payable, because the section says that such, payment shall not be deemed to be a payment of compensation. In this case the amount was paid to the applt. not as compensation but as an ex gratia payment. Therefore, the observation I have made applies with greater force. This amount cannot be deducted from the sum of Rs. 3500.
4. If we look upon the receipt as evidencing a contract between the widow & the employer, then under Section 17 of the Workmen's Compensation Act, a workman cannot contract himself out. The Section protects the ignorant workman who may be induced by the employer to agree to less compensation or to abandon something which he is entitled under the Act to claim. If the employer pays of his own to the workman, he does so with the risk that be will not be entitled to get a set off for the sum so paid. Further as a contract it should have been regd. Under Section 28. That has not been done. In our opinion the resp. is not entitled to get a set off for the sum of Rs. 3000 paid to the widow as aforesaid.
5. The learned Comr. thought that there was some sort of equity in favour of the resp. & on that he deducted this sum from the sum of Rs. 3500. We do not see how any equity arises when the sections of the Act are definite & clear. We are of the opinion that the learned Comr. was wrong in deducting the sum of Rs. 3000 from the sum of Rs. 3500.
6. We therefore allow this appeal. There will be a decree in favour of the applt. for the sum of Rs. 3475 with costs here & below. The hearing fee of this appeal is assessed at three gold mohurs.
7. I agree.