1. This is a petition for revision of an order of the Commissioner for Workmen's Compensation, West Bengal, refusing the prayer for a refund of a sum of Rs. 540 which had been deposited in the Court of the Commissioner for Workmen's Compensation.
2. On 8-9-1948 the Workman fractured his leg as a result of an accident arising out of and in the course of his employment and for the period from 16-9-1948 to 21-4-1950 he was paid a regular half monthly sum based on his average monthly wages as compensation. On 21-4-1950 the workman unfortunately died and it was conceded that his death was due to the accident which arose out of and in the course of the employment.
3. The employers deposited in the Court of the Commissioner a sum of Rs. 1800 which was the amount payable on the death of a workman earning wages between its. 50 and its. 60 a month, as this workman was earning.
4. On 29-8-1950 the employers made an application for a refund of Rs. 540 out of the sum of Rs. 1800 which they had deposited as compensation. They alleged that they had deposited Its 540 more than was due from them for compensation and that being so, they were entitled to a refund. The sum of Rs. 540 was the total sum which had been paid in half monthly instalments to the workman as compensation during the period of his incapacity preceding his death.
5. The learned Commissioner held that the Indian Workmen's Compensation Act did not permit of any deduction being made from the total amount due as compensation in respect of payments made during the lifetime of the injured workman.
6. On behalf of the employers, Mr. Sanyal has argued that the learned Commissioner was wrong in holding that nothing could be deducted from the sum of Rs. 1800 in respect of payments made to the workman before his death. In England the Workmen's Compensation Act expressly provides for such deductions. Deductions of payments made are allowed subject to a minimum which must be payable to the dependants. In the Indian Act there is no express provision similar to that found in the English Act. But Mr. Sanyal contends that by reason of Section 4 of the Act these deductions can be made and what is payable to the dependants in circumstances similar to those which exist in this case is the lump sum calculated in accordance with sch. IV less payments as compensation to the injured workman during his lifetime.
7. The amount of compensation payable to dependants and injured workman is dealt with in Section 4, Workmen's Compensation Act. Sub-section (1) of that section provides:
'Subject to the provisions of this Act, the amount of compensation shall be as follows, namely
A. Where death results from the injury-(1) in the case of an adult in receipt of monthly wages falling within limits shown in the first column of Sch. IV the amount shown against such limits in the second column thereof.'
8. This section then deals with amounts payable where there is permanent total or partial disablement and lastly where there is temporary disablement whether total or partial.
9. Immediately following these provisions there is proviso (a) which is in these terms:
'There shall be deducted from any lump sum or half-monthly payments to which the workman is entitled, the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be'.
10. At first sight this proviso would appear to apply only to deductions which can be made from any lump sum payable to an injured workman and such lump is payable by reason of Section 4(l)b and c. However Mr. Sanyal has pointed out that where a workman has died, the term 'workman' when used in the Act will include dependants and this is clear from the concluding portion of Section 2(1)(n)(ii) which is in these terms;
'* * * and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any them'.
11. It is clear therefore that where an injured workman has died the term 'workman' when used in the Act will include dependants. In the present case the injured workman died and therefore it appears to me that the word 'workman' in proviso (a) to Section 4(1), Workmen's Compensation Act can be read as dependants of a workman. The dependants are entitled on the death of a workman to a lump sum and therefore the proviso will read as follows:
'As the workman is dead there shall be deducted from any lump sum to which the dependants of a deceased workman are entitled, the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum.'
12. If the proviso can be read in that way then it is quite clear that the compensation payable to the dependants is the lump sum calculated in accordance with the terms of sch. IV less payments which the workman received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum, that is, prior to his death when the lump sum of course became due.
13. That such was the intention of the Legislature is I think clear because rules and forms have been drafted dealing with this matter. Rule 6 of the Workmen's Compensation Rules, 1924 governs the making of a deposit of compensation by an employer. The amount of compensation is deposited in the Court of the Commissioner under Section 8(1) of the Act. Sub-rule (1) of n. 6 is in these terms :
'An employer depositing compensation with the Commissioner under sub-section (1) of Section 8 in respect of a workman whose injury has resulted in death shall furnish therewith a statement in form A, and shall be given a receipt in Form B.....'
14. Form A opens with the statement that an amount by way of compensation is presented for deposit in respect of injuries resulting in the death of a workman. Then follows a statement of a workman's name his address and his monthly wages and a statement that he is or is not over fifteen years of age.
15. The employer must then set out what payments he had made to the workman prior to his death and what advances had been made on account of compensation to dependants.
16. It is quite clear that the form has been drawn up in this way to show how the amount of compensation deposited is arrived at. The amount is calculated in accordance with sch. IV on the basis of the average monthly wages which must be stated. Then there must be stated the amounts which have been paid to the workman and the dependants and it appears to me that these amounts must be stated to show why the total amount deposited is less than the amount of compensation shown in the schedule. Unless these amounts shown could be deducted then showing them, would be quite useless and worthless. The form would merely demand information which would be of no value to anybody and clearly the draftsman of the rules and the framer of these forms-must have thought that these particulars were necessary in the form which has to be filed when, compensation is deposited.
17. However the forms and rules cannot give the employers a right to deduct these payments unless the statute does and it is urged that Section 8 of the Act prohibits any deduction, from compensation payable to the dependants of a deceased workman except such as are allowed in that section. Section 8(1) provides :
'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 deemeed 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.'
18. It is argued that this section forbids any deduction from the amount of compensation payable in respect of a workman who has been killed as a result of accident. The section, it is said, requires that the amount of compensation be paid into the Court of the Commissioner arid no deduction can be made except that expressly provided for in the proviso. It is contended therefore that as sch. IV requires a payment of Rs. 1,800 in this case no deduction can be made in respect of payments made to the workman during his lifetime.
19. It is true tha,t Section 8 provides that no deduction shall be made from the amount of compensation payable to dependants on the death of a workman. But that leaves the question open as to what is the amount of compensation payable. When that amount has been ascertained the amount must be deposited in the Court of the Commissioner and no deduction except those specifically provided for can be made. As I have said earlier the amount payable as compensation is the amount as calculated by Section 4 and if the word 'workman' in proviso a to Section (4) (l) must be construed to include dependants of a workman then the amount of compensation which has to be paid into Court in respect of the death of a workman, is the amount as calculated under sch. IV less payments of compensation made to the workman during his lifetime and before his death. It seems to me that Section 8 does not assist the Court in ascertaining what is the compensation payable. When that amount has been ascertained then by the terms of Section 8 no deduction can be made from that amount except such deduction as is expressly provided for in the section.
20. Learned Advocate for the respondent has relied upon a Special Bench decision of the Rangoon High Court in the case of In the matter of Maung Nyi of Khangone, 11 Rang. 154 in which it was held that payments made by an employer to an injured workman before his death under Section 4(1)d, Workmen's Compensation Act cannot bo deducted from the compensation payable to his dependants under Section 4(1)(a) of the Act. The right of the dependants to compensation upon the death of a workman is independent of the workman's right to compensation.
21. It is to be observed that in this Eangoon case the attention of the Court was never drawn to the definition of the word 'workman' and to the fact that the word 'workman' when it appears in the Act includes the dependants of the workman if the workman has died as the result of an injury. That being so, the Special Bench never considered what effect had to be given to proviso (a) to Section 4(1) of the Act. In fact there is no reference at all to this proviso in the judgment. Further the attention of the Court does not appear to have been drawn to the rules or the forms framed under those rules. In any event this decision of the Rangoon High Court, though worthy of our careful consideration, does not bind this Court. In my judgment this decision should not be followed and it must be held on a true construction of proviso (a) to Section 4(1) of the Act that a deduction in respect of payments of compensation made to the workman during his lifetime can be made and, that, what should be deposited as compensation payable to the dependants is an amount calculated in accordance with Sch. IV of the Act less these payments. That being so, it is clear that the employers in this case could have deducted a sum of Rs. 540 from the sum of Rs. 1,800 which is the sum as calculated under sch. IV and as they had deposited as compensation a sum of es. 540 in excess of the amount due from them, they were entitled to demand its return. The decision of the learned Commissioner that there was no provision in the Act for such deduction is erroneous and his order must therefore be set aside, and the refund must be ordered.
22. In the result therefore this petition is allowed. The order of the Commissioner for workmen's Compensation is set aside and the latter is directed to allow the refund of this sum of Rs. 540 to the petitioners. No order is made as to costs in this Rule.
G.N. Das, J.
23. I agree.