First Appeal No. 1122 of 2013. Case: Siddharth Sambhaji Survase and Mrs. Pushpa Siddharth Survase Vs Air India Charters Ltd.. High Court of Bombay (India)
| Case Number | First Appeal No. 1122 of 2013 |
| Counsel | For Appellant: Mr. Shailesh Naidu, Mr. Amit Survase and Mr. Afroz Shah, i/b C.R. Naidu & Co. and For Respondents: Mr. Firoz Bharucha and Mr. Siddhant Vakil, i/b Mulla & Mulla |
| Judges | A. P. Bhangale, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Section 195; Employee's Compensation Act, 1923 - Sections 17, 19(2), 2, 20, 23, 28, 29, 30(1)(c), 4, 8, 8(1); Workmen's Compensation Act, 1923 - Sections 2 (b), 22A, 4, 8 |
| Judgement Date | September 26, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
A. P. Bhangale, J.
1. This appeal is taken up for final hearing by consent. The appeal is preferred under Section 30(1)(c) of the Employee's Compensation Act, 1923(hereinafter referred to as 'Act'.) Heard submissions at the bar at length with reference to the compilation filed on behalf of the appellant of the recorded evidence and copies of annexures and Judgment by Learned Commissioner. Facts are that on 22-05-2010, an Air crash accident occurred at Mangalore in which 158 persons were killed which, inter alia, included passengers and crew members of ill fated Air plane. Miss Sujata Siddharth Survase (Daughter of Appellants Siddharth and Mrs. Pushpa) was one of them. The grievance of the appellants is limited against the order dated 15-04-2013 passed by the Commissioner for Employees Compensation, whereby direction was given for deduction of the amount of Rs. Ten Lakhs earlier paid as interim compensation from the amount of Rs. 25,87,655/- deposited by the Employer Air India Charter Ltd. under the Employees Compensation Act. The amount was payable to the dependents of the young teenaged employee Ms Sujata Siddhartha Survase who fell victim in the Mangalore Air Crash.
2. The Employer informed appellants that by letter dated 13-07-2012 the employer had deposited the amount of Rs. 25,63,506/-(24,208/- Monthly salary x 50% x 211.79) on 06-07-2012 vide Cheque no. 006256 dated 10-07-2012 as compensation provided under the Act, required to be deposited under Section 8(1) of the Employees Compensation Act, before Learned Commissioner empowered to distribute the compensation amount. Employer had earlier paid interim compensation in the sum of Rs. Ten Lakhs vide Cheque no. 005190 dated 14-06-2012 to the dependent claimants on account of Siddharth Survase (Father of deceased employee) and informed by letter dated 15th June 2010 thus:-
Dear Sir,
The tragic death of your daughter Miss Sujata. S. Survase in the unfortunate tragedy of our flight IX-812 of 22nd May 2010 was a big shock to all of us. We want you to know that our thoughts are with you and your family during this difficult time.
We also want you to know that Air India Express will always remember the services rendered by your daughter Miss Sujata S. Survase to the Company.
Enclose herewith please find Cheque No. 5190 Dated 14th June 2010 for Rs. 10,00,000/- as an interim compensation to be adjusted out of the amount of compensation to be paid by Air India Charters Limited.
Also enclosed herewith please find Cheque No 5489 Dated 14th June 2010 for Rs. 2,00,000/- from the Prime Minister's Relief fund.
May God give you the courage to get over this tragedy.
S/d
Chief Operating officer
Air India Express
To Shri
Siddharth S. Survase
11/12, Sankalpana C.H.S. SVP Nagar
MHADA Complex, Four Bunglows andheri West
Mumbai -400 053
Thus, Company claimed refund from the amount deposited with the commissioner during the pendency of the proceeding before the Commissioner.
3. It is not disputed by the Appellant that on 13th July 2012 they were informed by the respondent Employer that amount of Rs. 25,63,506/- was deposited with the Commissioner as compensation payable to dependents of Ms Sujata Siddhartha Survase as per the provisions of the Employees Compensation Act, 1923. It is contended that the learned Commissioner ought to allow set off only to the extent of an amount equal to three month's Wages paid directly by the Employer to the dependents of the deceased employee and not for any more amount because according to Learned counsel for the Appellant, Section 8(1) of the Act prohibits an Employer from directly making payment of Compensation to the dependent of the employee and any payment made directly to the employee beyond three months shall not be deemed to be compensation. Thus, it is contended on behalf of the Appellant that commissioner can not direct deduction of the amount exceeding three months Salary/wages from the amount deposited. Thus, according to the learned counsel for the appellant the amount exceeding sum of Rs. 72,624/- could not have been deducted from the statutory amount deposited by the Employer.
(A) The substantial question posed before this Court is whether the Commissioner was justified to direct deduction and refund of the amount of Rs. Ten Lakhs as surplus paid by the Employer as interim compensation to the dependents of the deceased employee Air crew Sujatha Sidharth Survase from the amount deposited by the employer as the total sum required to be deposited by the Employer with the Commissioner as compensation provided for under the Act?
(B) What Order?
My answer considering the facts and circumstances of the case to point {A} is affirmative and to point {B} is that the appeal must be dismissed with no order as to costs under the circumstances as per final order.
4. Learned Counsel for the Appellant placed reliance upon the ruling in Kathleen Dias Vs. H.M. Coria reported in LAWS (Cal) 1951 2 16. In that case the Employer had issued a Cheque as ex-gratia payment which was acknowledged by the dependents of the deceased workman. Later, when claim was made with the Commissioner, compensation was granted only in the sum of Rs. 475/- after deduction of the sum of Rs. 3000/- paid as an ex-gratia payment. Section 17 of the Act, it is held that protects ignorant workman who may be induced by the employer to agree to less compensation, or to abandon something which the workman is entitled to claim under the Act. If the employer pays on his own to the workman he does so with the risk that he will not be entitled to get set off for a sum so paid. Further as a contract it should have been registered under Section 28 of the Act. Calcutta High Court held when that was not done, the employer was not entitled to get a set off for the sum paid Rs. 3000/- to the workman. The ruling referred to the prohibition contained in Section 8 of the Act from direct payment to the workman as it shall not be deemed as compensation but as an ex gratia payment.
5. Learned Counsel for the Appellant then referred to the ruling in Bai Chanchal Ben Vs. Burjorji Dinshawji LAWS (GJH) 1968-11-11. In this case, the amount of compensation was payable in the sum of Rs. 3000/- but the Commissioner ordered the award of sum of Rs. 1500/- as payable having deducted the sum of Rs. 1500/- earlier paid by the employer. Following the ruling in Kathleen Dias, Gujarat High Court allowed the appeal by modifying the award in the sum of Rs. 3000/-.
6. Third ruling referred by Shri Naidu is Divisional Engineer M.P. Electricity Board Vs Mantobai LAWS (MPH)-1988-7-15. The question raised was as to whether the Commissioner or Court in appeal has jurisdiction to give credit to any direct payment in the nature of ex gratia compensation under any statutory provision or Contract and whether any compensation payable under the Act is liable to be reduced by such payment? Under the Act in case of workman's death the mode of payment is specified. It is by way of deposit with the Commissioner...
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