Punjab Engineering Workshop and Others vs Waryam Singh and Others

Gopal Singh, J.—This is an appeal by Punjab Engineering Workshop and its 4 partners against Waryam Singh and others, It is directed against the order of payment of compensation of Rs. 8,000/ by the Appellants to the Respondents, passed by Senior Subordinate Judge exercising powers of Commissioner under the Workmen''s Compensation Act, 1923 (hereinafter called ''the Act''). The facts leading to the appeal are as under:

The deceased is Darshan Singh. He met with an accident on June 5, 1963, while, working as Electrician in the workshop of the Appellants. At the time of accident, he'' was working on an electric drill. He received an electric shock and as a result thereof expired. His body was carried from the workshop to the hospital. There he was declared dead by the doctor.

Waryam Singh, father of the deceased, Swaran Kaur widow of the deceased and Balvinder Singh and Gurmit Singh his minor sons filed application u/s 22 of the Act claiming compensation on the ground that the deceased was on duty when the fatal accident resulting in the death of, the deceased occurred and that he died in course of his employment with the Appellants. In their written statements, the Appellants inter-alia, pleaded that the factory of the Appellants, in which the deceased worked, did not employ 10 or more than 10 persons, that no notice as required by Section 10 of the Act had been served upon the Appellants as a condition precedent for making an application for payment of compensation, that the applicants were not related to, the deceased as alleged by them and they are not his dependants, that the deceased, on the day of accident, was drawing Rs. 210/-per mensem and not Rs. 275/- as pleaded in the application on behalf of the dependents and that the deceased was not a workman. The Appellants also denied the factum of his death having occurred in the premises of their factory. The above pleadings of the parties gave rise to the following two preliminary issues:

(1) Whether this application does not lie for reasons mentioned in preliminary objection No. 1 in the written statement ?

(2) Whether there is any farm of the name of Respondent No. 1 (Appellant No. 1 in the appeal) ?

The trial Court on issue No. 1 as to whether 10 or more than 10 persons were not employed in the factory of the Appellants and the deceased could not be regarded as workman, gave a finding that there was no satisfactory evidence that the number of persons employed in the factory was less than 10 and consequently came to the conclusion that the deceased was a workman in the factory of the Appellants. The decision of the trial Court on issue No. 1 was also to the effect that as the Appellants knew about the accident and one of the partners was actually present in the premises where the accident occurred, the Appellants could be charged with the knowledge of the accident and not formal notice as pleaded in para No. 1 of their written statement was necessary. An application for amendment of the heading of the claim application having been made by the Respondents and allowed and the correct description of Appellant No. 1, having been given issue No. 2 no longer survives for consideration. The following are the issue, which were framed on merits by the trial Court:

(1) Who are the dependants of the deceased ?

(2) Whether the deceased received injuries out of and in the course of employment and the death occurred due to those injuries ?

(3) Whether the deceased received injuries on account of his own negligence ? If so to what effect ?

(4) Whether the Respondents have paid Rs. 1,000/-, already, as compensation under the Workmen''s Compensation Act! If so to whom and to what effect ?

(5) To what amount of compensation, under the Workmen''s Compensation Act are the applicants or any of them, entitled ?

(6) Whether the notice was necessary ?

(7) If so, whether a valid notice was given to the employer ?

On issue No. 1, the Commissioner found that the applicants, now Respondents, were the dependants of the deceased. On issue No. 2 it gave the finding that the deceased received injuries in course of his employment and the death occurred as a consequence of these injuries. The Commissioner negatived the contention of Appellants under issue No. 3 that the deceased met the fate of death as a result of his own negligence. On issue No. 4 it gave the finding that the payment of compensation of Rs. 1,000/- by the Appellants to the Respondents had not been established, on quantum, the Commissioner found that the Respondents were entitled to a compensation of Rs. 8,000/-. Taking into consideration the relevant provisions of Section 10 of the Act, the Commissioner found that notice was not necessary inasmuch as the Appellants knew about the accident having occurred in the premises of their factory.

Mr. G. C. Mittal, appearing on behalf of the Appellants has not challenged the correctness of findings of fact given on issues Nos. 1 to 5, as those findings have, under the provisions of Section 22 of the Act, become final. He has done so quite rightly. It is only a substantial question of law that can be raised in an appeal filed by an employer against the award of compensation to the dependants of an employee, who suffered from an accident in the course of his employment. He has thus confined himself only to issues Nos. 6 and 7 and raised the point that the application filed on behalf of the Respondents u/s 22 of the Act is, by virtue of Section 10 of the Act, not maintainable unless notices as provided in Section 10 had been served upon the Appellants.

In order to appreciate the contention raised, it is necessary to reproduce the relevant provisions of Section 10 of the Act. These provisions are as follows:

(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 2 years of the occurrence of the accident or, in the case of death, within 2 years of the date of death:

provided that....

provided further that....

provided further that....

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 places, or on any premises belonging to the employer, or died without having left the 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 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.

The purview or the main clause of Sub-section (1) of Section10 of the Act as reproduced above does show that compliance with that provision by way of service of notice is a condition precedent and mandatory. Its circumstances imperativeness has, however, been given in the five provisos appended to it, been diluted and even rendered nugatory, if the case of a claimant can be made to fall under one or more of those provisos. The purview is bristled with the exceptions in the form of provisos overriding it. The present case is clearly covered by the exception laid down in the 4th proviso as reproduced above in extenso. According to that proviso, want of or any defect or irregularity in a notice cannot be a condition to the entertainment of claim application, when the claim has been preferred in respect of the death of a workman resulting from an accident, which occurred on the premises of the employer or one or more of the employers or any person responsible to them for management of the factory, in which the injured workman was employed, had knowledge of the accident, even from any other source at or about the time when it occurred.

The case of the Respondents falls squarely within the four corners of that proviso. It has not only been found that the accident resulting in the death of the deceased occurred in the premises of the factory of the Appellants but also he died there while working in course of their employment. The correctness of that finding of fact has not been and cannot be challenged. The Commissioner also observed that one of the proprietors, by which he implies one of the partners, was present in the premises of the factory soon after the accident took place and his statement was also recorded. These findings of fact have not been impugned on behalf of the Appellants and quite rightly. These finding of fact have by virtue of Section 22 of the Act, become final. The case is clearly covered by the fourth proviso. As given in the fifth proviso, service of notice is not imperative or in dispensable must. A Commissioner, while dealing with a case may, in his discretion, notwithstanding the fact that notice as contemplated by the principal clause of Sub-section (a) of Section 10 had not been given waive the failure to give that notice and deal with the claim on merits, if the circumstances of the case so call for. It has been unequivocally established that the deceased met the accident in the premises of the factory of the Appellants and as a result of electric shock received by him in course of his employment he succumbed to that shock. The deceased having died in the premises of the factory, in which he was working as workman at the time the accident occurred and one of the partners of Appellant No. 1 being present at the time he died possessed the knowledge of the death of the deceased. Thus the point raised that the provision of Sub-section (1) of Section 10 for service of notice upon the Appellants having not been complied with prior to the entertainment of the application by the Commissioner has no substance.

For the reasons recorded above, the appeal is disallowed. There will, however, be no order as to costs.