H. N. Q. FERNANDO, J.—Waas v. Peiris
Present:M. N. 6. Fernando, J.
P. W. WAAS, Appellant, and M. A. PEIRIS, RespondentS. G. 10—Workmen's Compensation G30/10,251(53
Workmen’s Compensation Ordinance (Cap. 117)—Section 42—Amount of compen-sation fixed by agreement of parties—Memorandum of agreement—Duty ofCommissioner to register it.
Where, in proceedings under the Workmen’s Compensation Ordinance, theparties have agreed on the amount of compensation payable to the workman,the Commissioner is not entitled to refuse to register the memorandum of agree-ment as provided in section 42 merely on the ground that the sum acknowledgedto have been received by the workman has not actually been paid.
i 1PPEAL under section 48 of the Workmen’s Compensation Ordinance.
E. A. G. de Silva, for the respondent-appellant.
No appearance for the applicant-respondent.
T. A. de S. Wijesundere, Crown Counsel, for the Attorney-General on
Cur. adv. vult.
September 30, 1957. H. N. G. Fernando, J.—
The accident of which these proceedings under the Workmen’s Com-pensation Ordinance are the outcome took place on 10th March 1953 andit is common ground that the parties subsequently agreed that the amountof compensation payable to the workman should be Us. 336. There is a
H. N. G. FERNANDO, J.— Waas v. Peiris
Memorandum of Agreement to this effect dated 13th July 1953, and onthat date the employer’s insurer transmitted the Memorandum to theCommissioner for registration. I do not think there is any substancein the argument for the employer that since the agreement "was trans-mitted by the Insurance Company and not by the employer, the agreementwas not properly before the Commissioner. It is obvious that the em-ployer must have expressly or impliedly authorised the Company totransmit the Memorandum to the Commissioner.
Section 42 of the Ordinance requires the. Commissioner to register aMemorandum of Agreement if satisfied as to its genuineness, and enablesthe Commissioner in certain specified circumstances to refuse to registerthe Memorandum and, if so, to make an order as to the payment ofcompensation. Before coming to any decision the Commissioner issuednotices on several occasions to the workman informing him that thequestion of registering the Memorandum would be considered. But itwould appear that these notices may not have reached the workmanbecause they were addressed to him care of the employer’s Mill at whichhe was no longer employed. Ultimately, however, the workman hadsent a petition to the Commissioner alleging that the employer hadpromised to pay some money as compensation but that it had not beenpaid.
An inquiry was then held on 29th August 1956 at which it was common,ground that the amount mentioned in the Memorandum of Agreementwas the amount properly due as compensation due to the workman fromthe employer. That being so I do not see how the Assistant Commis-sioner could decline to register the Memorandum ; the only relevantground specified in section 42 on which a refusal might have been justifiedwas that the agreement fixing Rs. 336 had been " obtained by fraud,undue influence or other improper means ” and the fact that both partiesadmitted Rs. 336 to he the proper amount makes it clear that the workman
voluntarilv consented to the fixation of that amount.
In declining to register the Memorandum, however, the Assistant Com-missioner has relied on another circumstance to which I shall now refer.The Rorm of the Memorandum is one prescribed by Rules under theOrdinance and has at its foot a form of receipt to be filled in where pay-ment of the agreed amount has already been made, and in the presentcase the workman has signed the receipt acknowledging payment of thewhole sum. But at the inquiry he contended that only Rs. 89 had beenpaid to him and that the employer had promised to pay the balance.While the Assistant Commissioner did not accept the version that onlyRs. 89 had been paid, he came to a finding, which was quite unwarrantedby the evidence, that only half the amount due on the Memorandum hadactually been paid, and he therefore refused to register the Memorandumand also made order that the employer should pay the balance half, thatis Rs. 188. In my view a finding, even if it were assumed to be a correctfinding, that the sum acknowledged in the receipt had not actually beenpaid, cannot alter the admitted fact that the workman agreed to acceptSs. 336 as compensation. The Assistant Commissioner was therefore
Dias v. Dias
clearly..wrong in. refusing to register the agreement and I have accord-ingly to set aside the order he made and to direct that the Memorandum beregistered as provided in section 42.
The right to receive payment of a specified amount as compensation-only arises under the Ordinance after the amount payable is fixed eitherby an award or order duly made under the Ordinance or in an agreement-duly recorded, and since in the present case the fixation of the amountwas by agreement, the right to payment will only accrue after the Memo-randum is recorded in pursuance of my direction. It will then be opento the workman, if so advised, to take proceedings for recovery of theagreed amount, and the question whether, having regard to the receiptsigned by the workman on 13th July 1953, the amount of Rs. 336 was.actually paid or not will then arise for determination.
Order set aside.