M/s. United India Insurance Co. Ltd. vs Shivaram and Another

Mrs. S. Sujatha, J.—These three appeals are directed against the judgment and order passed by the Commissioner for Workmen''s Compensation at Raichur in WCA No. 78 to 80/2003. Since these matters arise from the common judgment of the Commissioner for Workmen''s Compensation (the ''Commissioner'' for short), all these matters are clubbed, heard together and disposed of by this Common judgment.

Briefly stated the facts are:-

The claimants preferred the claim petition seeking compensation contending that the first claimant was working as a driver, the second claimant as a cleaner and the third claimant as a labourer in a lorry bearing registration No. KA- 35/0572 under respondent No. 2 herein. It is the case of the claimants that on 11.11.1999, as per the direction of the second respondent herein, they were proceeding in the said lorry and due to the mechanical defect, the said vehicle met with an accident and in the said accident, claimants suffered grievous injuries which caused permanent disability; the accidental injuries are in the course of the employment with the second respondent herein and accordingly sought for compensation. The appellant contested the claim petition and it was contended that the claim petition was barred by limitation and hence not maintainable, inter alia contending that there was no relationship of employer and employee between the first respondent and second respondent herein. Appreciating the evidence on record, the Commissioner by order dated 7.4.2007 held that the first respondent has sustained injuries while he was in the course of and arising out of the employment with the second respondent, claimants are entitled to the compensation with interest and directed the appellant-insurance company to pay the same. Being aggrieved by the said order the appellant preferred the appeals before this Court and this Court was pleased to remand the matter back to the Commissioner for fresh consideration and directed to give : sufficient opportunity to both the parties to lead evidence with regard to the condonation of delay in filing the claim petition. After remand, the Commissioner issued notices to both the parties and provided an opportunity to lead evidence. The first respondent has filed an affidavit evidence and ho was cross examined by the appellant. No evidence was led on behalf of appellant, neither the objections were filed by the appellant to the application filed by the claimants seeking condonation of delay nor any evidence was led by the appellant to discard the evidence of the claimants.

The Commissioner on appreciation of evidence has made out sufficient ? cause to condone the delay and condoned the delay in filing the claim petition and confirmed the award passed on 7.4.2007 fastening the liability on the appellant insurer. Being aggrieved the appellant is before this Court.

Learned Counsel for the appellant would contend that the Commissioner erred in allowing the application filed by the claimants seeking condonation of delay. No sufficient cause was shown by the claimants to condone the inordinate delay of nearly four years four months. Learned Counsel would point out to section 10(1) of the Workmen''s Compensation Act, 1923, (the ''Act'' for short) to contend that admittedly, the accident occurred on 11.11.1999 and the claim petition was filed by the claimants on 24.3.2003 beyond two years, no sufficient cause was shown by the claimants to condone the delay. The order of the Commissioner in condoning the delay is contrary to the provisions of section 10(1) of the Act. It is further contended that the disability adopted by the Commissioner as assessed by the doctor is wholly untenable. The injury sustained by the claimants were simple in nature as per the wound certificate as such the loss of earning capacity assessed at 45% to the claimant Nos. 1 and 2 and 50% to the claimant No. 3 is without valid basis. Accordingly, he challenges the quantum of compensation awarded by the Commissioner.

Per contra, learned Counsel for the claimants would contend that in the first round of litigation before this Court in MFA Nos. 4084/2004 and connected matters the appellant contended that the Commissioner without condoning the delay had passed the order contrary to the provisions of section 10(1) of the Act. Accepting the same, this 1 Court has remanded the matter back to the Commissioner setting aside the orders passed by the Commissioner, to determine the question of limitation at the first instance. It was categorically held that if the delay is condoned, the Commissioner shall decide the claim petitions on merits 111 accordance with law.

In compliance with the order passed by this Court, the Commissioner has issued the notices to the parties. The claimants have filed the applications seeking condonation of delay in filing the appeals on 4.5.2012. There was no representation on behalf of respondent No. 1. Respondent No. 2 the appellant herein filed a memo stating that the cases are remanded back by this Court to decide the issue of limitation that the appellant herein had already filed written statement in the above cases before remand, so the same may be considered in the proceedings after remand.

The claimants have contended that the delay was caused only due to the assurances/promises made by the employer that the claimants would be duly compensated but in vain. Satisfactory explanation was offered by the claimants to condone the delay. In the absence of any objections filed by the appellant and the owner, appreciating, the sufficient cause shown, the Commissioner condoned the delay in filing the appeals and considered the matter on merits which cannot be found fault with.

As regards, the challenge to the quantum the learned Counsel would contend that Commissioner after appreciating the evidence of a qualified medical practitioner who determined the loss of earning capacity awarded the compensation which is just and reasonable and does not call for any interference by this Court.

Having heard the rival submissions of the parties and perusing the material on record, the substantial questions of law which arises for consideration in these appeals filed under section 30(1) of the Act, are;

(i) Whether the Commissioner is justified in condoning the delay in filing the claim petition?

(ii) Whether the Commissioner is justified in accepting the evidence of the doctor for assessing the loss of earning capacity?

It is discerned from the records that the accident took place on 11.11.1999, the claim petition was filed on 28.3.2003. In terms of section 10(1) of the Act, claim petitions should have been filed within two years from the date of the accident. Proviso to section 10(1) of the Act vests power with the I Commissioner to condone the delay if he satisfies that delay was due to sufficient cause. This Court in the appeals preferred by the insurer challenging the order passed by the Commissioner, whereby no order was passed on the limitation aspect, remanded the matter back to the Commissioner to determine the question of limitation and thereafter if the delay is condoned to decide the claim petitions on merits in accordance with law.

On remand, the claimants have filed applications seeking condonation of delay for filing the claim petitions offering satisfactory explanation to condone the delay. These applications were not contested by the appellant. No objections were filed by the appellant or the owner of the vehicle to the said applications filed by the claimants.

The Commissioner after appreciating the sufficient cause shown by the claimants condoned the delay in filing the claim petitions. It is significant to note that Proviso to section 10(1) of the Act contemplates;

"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."

It is limpid that the Commissioner has the power to condone the delay and in the absence of leading any rebuttal evidence to contradict the statements made by the claimants whereby sufficient explanation was offered to condone the delay and no objections being filed to the applications, the challenge made by the appellant to the order of the Commissioner is wholly unsustainable. No ground is made out by the appellant to interfere with the well reasoned order of the Commissioner in condoning the delay more particularly, the Act being a socio-beneficial legislation enacted to safeguard the interest of the employees.

As regards the challenge made to the quantum of compensation, it would be beneficial to refer to section 4 (1) (c) (ii) of the Act which reads thus;

"in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;"

The doctor examined by the claimants had assessed the loss of earning capacity. It is trite that in the case of injury other than specified in Schedule (i) the determination of amount of compensation depends on the permanent total disablement as is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. It is not in dispute that the doctor examined by the claimants is a qualified medical practitioner. No efforts have been made by the appellant to discard the evidence of the doctor. Making mere allegations would not suffice the stance of the appellant that the loss of earning capacity determined by the Commissioner based on the doctor''s evidence is wholly unjustifiable or exorbitant. No attempt has been made by the appellant insurer to file the objections or to lead fresh evidence after remand. Given the circumstances, I do not see an iota of scope to interfere with the well considered order of the Commissioner.

In the result, the substantial questions of law involved in these appeals are answered in the affirmative in favour of the claimants and against the appellant. Accordingly, the appeals are dismissed as devoid of merits.

The amount in deposit, if any shall be transmitted the jurisdictional Tribunal for disbursement.