Banerjee, J.:— This is an appeal from an order made on 10th January, 1950, by the Commissioner for Workmen's Compensation and arises in the following circumstances. One Donald A. Dias was a workman employed by the respondent as a foreman. On 27th November, 1948, he received injuries and died on the same day from the injuries. On 8th December, 1948, the widow and other relations of the deceased received Rs. 3,000 from the respondent and gave a receipt. In that receipt they stated that they never had any claim by way of compensation or otherwise against the respondent for the accidental death of the deceased or for any arrear of salary or other remuneration payable to him and acknowledged having received from the respondent a cheque for Rs. 3,000 as an ex gratia payment. Thereafter the widow made the claim before the Commissioner. The Commissioner made a decree for Rs. 475 in favour of the widow. The Commissioner has found that the injury arose out of and in the course of the employment. There is no cross-objection or cross-appeal challenging this finding. The Commissioner thought that the rights amount to award was Rs. 3,500. But he took into consideration the sum of Rs. 3,000 paid by the respondent, and deducting that amount from the amount which he thought was the right compensation payable, he made a decree for Rs. 475 and Rs. 22-4 costs.
2. The question before us is as to whether this sum can be deducted from the sum of Rs. 3,500.
3. 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, and no payment of a lump sum as compensation to a workman 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 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.”
4. It is quite clear from this section that even if the sum of Rs. 3,000 had been paid to the appellant 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.
5. In this case the amount was paid to the appellant 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. 3,500.
6. If the receipt is taken as a contract between the widow and the employer, the answer would be that 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 a lesser compensation or to abandon something to which he is entitled under the Act. If the employer pays of his own accord to the workman he does so with the risk that he will not be entitled to get a set off for the sum so paid. Further as a contract it should have been registered under section 28. That has not been done. In our opinion the respondent is not entitled to get a set off for the sum of Rs. 3,000 paid to the widow as aforesaid.
7. The learned Commissioner thought that there was some sort of equity in favour of the respondent. We do not see how any question of equity arises when the sections of the Act are definite and clear.
8. We are of the opinion that the learned Commissioner was wrong in deducting the sum of Rs. 3,000 from the sum of Rs. 3,500. We therefore allow this appeal. There will be a decree in favour of the appellant for the sum of Rs. 3,475 with costs here and below. The hearing-fee of this appeal is assessed at three gold mohurs.
Harries, C.J:— I agree.