H.P. State Electricity Board and Another vs Thona

V.P. Gupta, J.—Shri Thona Respondent was employed as a Beldar in Uhl Hydel, I and C Division, Jogindernagar. He met with an accident on 31st May, 1973, at about 1 P.M. He was carrying a stone and his foot slipped with the result that he had a fall and sustained injury on (R) index finger having a fracture of meta-carpal bone. The injury was caused during the course of his employment as a Beldar. He remained under treatement as an out-door patient in Civil Hospital, Jogindernagar, for about 15 days. He was employed on daily wages and his average monthly wages were Rs. 112.50. The report of this accident was made by the Sectional Officer to the Sub-Divisional Officer, Power House Sub-division, Jogindernagar, who forwarded the same to the Executive Engineer. The Executive Engineer forwarded the report to the Superintendent Engineer and a copy of the same was also forwarded to the Commissioner, Workmen''s Compensation, Mandi, for information.

After receipt of the report, the Commissioner, Workmen''s Compensation, started proceedings in the case. He recorded the statements of the Respondent and the S.D.O., Power House Sub-Division, Jogindernagar, and also took on the file a medical certificate issued by the Medical Officer, Incharge Civil Hospital, Jogindernagar. After completing this enquiry he awarded an amount of Rs. 3000/- as compensation to the Respondent, vide his order, dated 12th September, 1974.

The Appellants have now challenged the order of the Commissioner, dated 12th September 1974.

Shri S.M. Sood appearing for the Appellants contended that the Commissioner acted without jurisdiction as there was no valid claim petition for compensation before the Commissioner. He also contended that the judgment of the Commissioner is based upon no evidence and the medical certificate cannot be read in evidence. It was contended that a substantial question of law is involved as the procedure adopted by the Commissioner is altogether illegal.

Shri A.K. Goel appearing for the Respondent contended that the Commissioner is justified in awarding compensation and there is no illegality in the proceedings before the Commissioner. It was contended that there is no substantial question of law involved in this case.

I have considered the contentions of the learned Counsel for the parties.

The Appellants have challenged the legality of the procedure adopted by the Commissioner and have further contended that there was no claim before the Commissioner. These contentions constitute substantial questions of law and can be validly agitated in the appeal. In such a situation I perused the records of the case.

The Respondent was admittedly employed as a ''workman'' with the Appellants and he met with a non-fatal accident on 31st May, 1973, during the course of his employment. In such situation, the Respondent could validly claim compensation from the Appellants under the provisions of the Workmen''s Compensation Act (hereinafter called the Act). The claim for compensation before a Commissioner has to be made under the provisions of the Act. Section 10 of the Act reads as follows:

Notice and claim.- (1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or in case of death, within two years from the date of death:

Provided that, where accident in the contracting of a disease in respect of which the provisions of Sub-section (2) of Section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease:

Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work, the period of two years shall be counted from the day of workman gives notice of the disablement to his employer:

Provided, further, that if a workman, who having been employed in an employment for a continuous period, specified under Sub-section (2) of Section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment the accident shall be deemed to have occurred on the day on which the symptoms were first detected:

Provided, further, that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim-

(a) if the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at any such place, or on any premises belonging to the employer, or died without having left vicinity of the premises or place where the accident occurred, or

(b) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at or about the time when it occurred:

Provided, further, that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this Sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause.

(2) xxx xxx (3) xxx xxx (4) xxx xxx

Section 22 of the Act reads as follows:

Form of application.- (1) No application for the settlement of any matter by a Commissioner, other than an application by a dependent or dependants for compensation shall be made unless and until some question had arisen between the parties in connection therewith which they have been unable to settle by agreement.

(2) An application to a Commissioner may be made in such form and shall be accompanied by such fee, if any, as may be prescribed and shall contain, in addition to any particulars which may be prescribed, the following particulars, namely:

(a) a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims,

(b) in the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer and, if such notice has not been served or has not been served in due time, the reason for such omission;

(c) the names and addresses of the parties; and

(d) except in the case of an application by dependants for compensation a concise statement of the matters on which agreement has and of those on which agreement has not been come to.

(3) If the applicant is illiterate or for any other reason is unable to furnish the required information in writing, the application shall, if the applicant so desires, be prepared under the direction of the Commissioner.

u/s 32 of the Act, rules have been framed. Part V of the Workmen''s Compensation Rules, deals with the procedure. In this Part V, Rules 19 and 20 read as follows:

Introductory.- Save as otherwise provided in these rules, the procedure to be followed by Commissioner in the disposal of cases under the Act or these rules and by the parties in such cases shall be regulated in accordance with the rules contained in this Part.

Applications.- (1) Any application of the nature referred to in Section 22 may be sent to the Commissioner by registered post or may be presented to him or to any of his subordinates authorized by him in this behalf and if so sent or presented, shall, unless the Commissioner otherwise directs, be made in duplicate in the appropriate form, if any, and shall be signed by the applicant.

(2) There shall be appended to every such application a certificate, which shall be signed by the applicant, to the effect that the statement of facts contained in the application is to the best of his knowledge and belief accurate.

According to Sections 10 and 22 of the Act read with Rule 20 ibid , a claim application duly signed by the applicant/claimant has to be presented to the Commissioner. Thereafter the Commissioner has to proceed in accordance with the procedure as laid down in Part V of the Rules.

u/s 23 of the Act, powers have been conferred upon the Commissioner of a civil Court for certain purposes, e.g. taking of evidence, enforcing attendance of witnesses, compelling the production of documents, etc.

In the present case, no claim application was ever presented by the Respondent and, therefore, it was not possible for the Commissioner to proceed with the enquiry of the claim of the Respondent. Even if the statement of the Respondent recorded on 18th June, 1974, by the Commissioner is treated as an application/claim, still the Commissioner did not proceed further with the claim in accordance with the Rules and no further enquiry was held. What the Commissioner did in the present case was, that he treated the report of the accident sent to him by the Executive Engineer as a claim by the Respondent, but this report could not be a substitute for a claim/application. In these circumstances it is held that there was, in fact, no claim/application by the Respondent before the Commissioner for awarding of compensation on account of accident.

The medical certificate attached with the file was not produced or proved by any doctor. This certificate also does not bear the thumb impression or the signatures of the Respondent. It is not duly proved or exhibited. It also does not bear any date. This medical certificate also does not mention as to when the Respondent was examined and from which date to which date he remained under treatment in Civil Hospital, Jogindernagar. It appears that the certificate was obtained on some later date. It was filed before the Commissioner on 11th September, 1974. In such circumstances, this medical certificate which was produced by the Respondent on 11th September, 1974, cannot be read in evidence as the same is not duly proved. The medical certificate further does not state as to what is the extent of disability suffered by the Respondent. Hence the Respondent cannot derive any benefit from this medical certificate.

If the medical certificate is ignored and the statement of the Respondent is treated as a claim then in that case there is no evidence at all on record to prove that the Respondent suffered any injury during the course of his employment. The nature of the injury and the extent of disability is also not mentioned. The statement of the Assistant Engineer, Power House Sub-Division, Jogindernagar, is insufficient to prove the nature of the injury and the extent of disability suffered, by the Respondent in the accident. The Assistant Engineer has also stated that the Respondent never remained as an indoor patient and that he had been regularly attending his duties and was able to work.

In view of the above discussion, I hold that firstly there was no proper claim/application for compensation before the Commissioner and the procedure adopted by the Commissioner in making the enquiry without a claim petition is illegal. Secondly, in case the statement of the Respondent is treated as a claim petition, then in that case there is no evidence at all to prove that the Respondent suffered any injuries in an accident during the course of his employment and the nature or the extent of disability suffered by him. In these circumstances the Commissioner was not justified in awarding any compensation to the Respondent.

In view of the above discussion, the order, dated 12th September, 1974, of the Commissioner allowing an amount of Rs. 3,000/- as compensation to the Respondent is set aside and the present appeal is accepted. In the circumstances of the case, I leave the parties to bear their own costs.