Khanchand vs Teejabai

Samvatsar, J.—The Appellant Khanchand is a P.W.D. contractor and the Respondent Teejabai Was a workwoman employed by him. On

21-3-1948 Teejabai met with an accident while she was working on one of the works which Was being carried out by the Appellant. The earth

and debris fell on her while she was in the trenches and she was buried and seriously injured.

As a result of this accident her left leg was amputated below the knee and in her right leg there was a fracture. On account of these injuries.

Teejabai became a cripple for life and became incapable of earning her livelihood.

On 27-3-52 she lodged a claim before the Commissioner appointed under Workmen''s Compensation Act for compensation for injuries caused

to her. The learned Commissioner entertained the claim and issued a notice to the Appellant to show cause why the Respondent''s claim be not

allowed. The Appellant sent a written reply through post but did not put in appearance before the learned Commissioner nor did he take any part

in the proceedings.

The result was that the Commissioner proceeded in his absence and holding that the Respondent has been permanently crippled and that there was

on account of these injuries a permanent total disablement, awarded her a sum of Rs. 1,134 as compensation. Aggrieved by this order of the

Commissioner the Appellant has preferred this appeal u/s 30, Workmen''s Compensation Act.

On the arguments of Mr. S.D. Sanghi, the learned Counsel for the Appellant, there are two questions involved in this appeal:

Whether there was sufficient cause for failure of the Respondent to lodge a claim for compensation within the period of 12 months as provided

by Section 10 of the Act, and,

Whether it was proved that there was a fracture in the right leg of Teejabai and that had affected her efficiency as a workman as held by the

Commissioner.

The first is a question of law but the second is purely a question of fact. Section 10 of the Act provides that whenever a workman sustains

injuries during the course of his employment, a notice of the accident shall be given to the employer and claim for compensation for injury to the

workman shall be filed within a period of 12 months from the date of the accident.

There is, however, a proviso to this section which empowers the Commissioner to entertain and decide a claim to compensation, in any case

notwithstanding that the notice had not been given or the claim has not been made in due time, if he is satisfied that the failure to give notice or

prefer a claim was due to sufficient cause.

It is well established by a series of decisions by the Courts in England and in India that if sufficient cause is made out for not filing a claim for

compensation within 12 months of the accident, subsequent negligence or improper delay in making a claim will be immaterial.

What the Court has to decide when a claim to compensation is lodged more than 1 year after the date of accident is whether there was sufficient

cause for the claimant''s omission to lodge the claim within 12 months and not whether there was a failure to account for subsequent delay in filing it

beyond the prescribed period.

The point, therefore, to be determined is whether on the facts found an inference that there was sufficient cause for the Appellant''s failure to lodge

her claim in time is made out.

The Commissioner has held that (1) the injured woman remained under treatment inside the hospital and outside for a considerably long period,

and (2) that she is crippled by both of her legs as a result of this accident and remained under the impression that her employer would satisfy her

needs and give her financial aid.

On these facts the Commissioner used his discretion in favour of the claimant and entertained her claim to compensation even though it was

presented after the period of one year had elapsed.

The Cal. High Court has in - Kesoram Cotton Mills Ltd. Vs. Bal Govind, considered the principle that should be borne in mind by the High

Court in entertaining an appeal against the order of the Commissioner entertaining the claim beyond the period specified in Section 10. The learned

Judges have observed:

We are sitting here in appeal and what we have to decide is whether the Commissioner took a view which is a reasonable view on the facts of the

case and a view which is correct in principle. It need hardly be pointed out that ''sufficient cause'' admits of an infinite variety of forms and will be a

vain endeavour to lay down any general principles.

The present case is not merely one of continuing in old employment and nothing more. The broad facts in the present case are that the workman

suffered an injury which reduced his working capacity; that the employers, knowing of that injury, and knowing of the reduced working capacity,

continued to employ him and paid him the same wages, and the most important of all is the fact that they put him on a lighter job.

The Commissioner has taken the view that, in those circumstances, the workman had sufficient cause not to provoke a conflict with his employers

and not to prefer a claim till his interests were prejudicially affected by dismissal and so long as he was receiving a kind of compensation in the

shape of lighter work and the same pay.

With regard to that finding I can rightly express myself in the language of English cases by saying that there was evidence to support that finding and

no misdirection.

Mr. Sanghi, the learned Counsel for the Appellant had no quarrel with these principles. The. learned Counsel, however, submitted that there

was absolutely no evidence to show that Teejabai was confined to her house for the period of one year on account of her illness and the said

finding arrived at without any material to support it would, therefore, be vitiated.

The present Appellant was served with a notice of the claim but did not turn up to contest it before the Commissioner. The claimant Teejabai

has pledged her oath and has proved the injuries suffered by her in the accident. According to her statement on oath she remained in the hospital

for about 3 months after the date of the accident and thereafter she continued the treatment but from her own house.

When it became apparent that this treatment was not very useful and did not bring about the expected improvement she left Indore and went to her

native place for treatment. She has stated that she remained there for Anr. 3 months and thereafter returned to Indore. It appears from her further

statement that her right leg also got badly damaged on account of a fracture and ceased to be of any use. She was consequently permanently

crippled, and was unable to move out of her house.

A period of 12 months thus appears to have been occupied in treatment and her illness and according to the view taken by the learned

Commissioner this was sufficient cause for her failure to lodge a claim within the period specified. In The Pollachi Transport, Ltd., by General

Manager Mr. G.D. Naidu Vs. Arumuga Kounder, the Commissioner had entertained a claim beyond the period of one year being satisfied that the

workman''s illness and his being complete wreck after his discharge from the hospital was sufficient cause for his failure to lodge a claim within the

meaning of Section 10.

The High Court in appeal agreed with the conclusion of the Commissioner and refused to interfere with the discretion used by him.

In the present case there is evidence to support the findings given by the learned Commissioner and there is no misdirection. The claim itself

was not opposed by the Appellant in the trial Court and in my opinion it is too late now to argue that the material to support the finding of

prolonged illness is lacking in the present case. In my opinion there are no good grounds made out to interfere with the finding arrived at by the

learned Commissioner on this point.

As regards the second point the Commissioner has found that the left leg of Teejabai had been amputated just below the knee and there were

in the right leg multiple contused lacerated wounds with underlying fracture of Tibia middle third. This finding of the learned Commissioner is

supported by the medical certificate produced by the Respondent in her statement on oath. She has also stated that her left leg was amputated

below the knee and the right leg had also become useless on account of the injury sustained by her in the accident on 21-3-1948.

Mr. S.D. Sanghi the learned Counsel for the Appellant contended that the medical certificate was not duly proved. Assuming this to be true there is

still left the statement of Teejabai corroborated by the amputation of her left leg and the marks of injury noted by the Commissioner. The Appellant

did not dispute that the left leg was amputated or that there was a fracture of the right leg, before the Commissioner. The finding regarding injuries

is a finding of fact and cannot be interfered with at this stage.

The learned Commissioner has held that the workman suffered a loss of earning capacity to the extent of 60 per cent, on account of the loss of

her left leg above the knee. It appears from the statement of the claimant herself that this is not so. She has deposed that the leg was amputated not

above or at the knee but below. The Commissioner also held that the bones of the right, leg below the knee are fractured and has estimated that

loss of the earning capacity for injuries to the right leg at 40 p.c.

The disablement of the claimant Teejabai is, therefore, not proved to be a permanent total disablement and the compensation awarded is in my

opinion not proper. The disablement is partial and the loss of earning capacity had to be determined by the Commissioner on the basis of evidence

on record. There is no evidence to prove this loss of earning capacity of the Respondent as a result of the injuries sustained by her in the accident

on 21-3-1948.

Mr. N.H. Dravid, the learned Counsel for the Respondent prayed that the case must be remanded to the Commissioner for recording further

evidence to determine the percentage of the loss of the earning capacity of Mt. Teejabai.

This is not a case which can be remanded under the provisions of Order 41 Rule 23, CPC and if the case is to be sent back it can only be

done in exercise of the inherent powers. I do not think this is, however, a fit case for exercising those powers.

The accident in which the Respondent was injured belonged to the year 1948 and the claim itself was lodged about 4 years thereafter. During

the trial the Respondent had enough opportunity to prove her case but she failed to do so probably taking advantage of the fact that the case was

proceeding in the absence of the Appellant. I do not under the circumstances think that this is a fit case to remand under the inherent powers.

The result is that the injuries to the left leg have caused a permanent partial disablement and has caused a loss of the earning capacity to the

extent of 50 p.c. She is, therefore, entitled to compensation amounting to Rs. 567 only. The amount of compensation awarded to Mt. Teejabai is

therefore, reduced to Rs. 567 only and the c1aim for the rest is hereby dismissed. The appeal is partially allowed. The parties are directed to bear

their respective costs.