Superintending Engineer and Others vs Mohammad Shafi Magary and Another

Mansoor Ahmad Mir, J.—The respondent Mohammad Shafi Magray had filed petition under Workmen's Compensation Act, for short the

Act, for grant of compensation. The exparte proceedings were drawn against the appellants and accordingly an award in exparte dated 7th

November, 2000, came to be passed by Commissioner under Workmen's Compensation (Assistant Labour Commissioner), Kupwara in favour

of the claimant/respondent No. 1 and against the appellants/respondents in the main petition.

It seems that appellants have filed an application in terms of Order 9 Rule 13 CPC for setting aside the exparte award which has been dismissed

by Commissioner under Workmen's Compensation (Assistant Labour Commissioner) Kupwara, vide order dated 7th April, 2001. The appellants

have assailed the exparte award dated 7th November, 2000 and order dated 7th April, 2001 by the medium of this appeal. Be it noted that in the

memo of appeal the date of award and date of order, dismissing the application for setting aside the exparte proceedings, have been wrongly

shown as 07.04.2000 and 01.11.2000, while as the actual dates are 07.11.2000 and 07.04.2000, respectively.

The following substantial question has been framed by this Court vide order dated 17th May, 2002;-

Whether claim petition under Workmen's Compensation Act 1923, can be entertained and award passed, even though notice u/s 10 of that is not

sent?

The application (CMP No. 30/2005) seeking Condonation of delay in filing the appeal against the exparte award dated 7th April 2000 stands

allowed by this Court vide order dated 22.02.2005.

Heard. Perused. Considered. The first important question which needs adjudication is, whether rejection of application in terms of Order 9 Rule

13 CPC is appealable or not?

In order to marshal and thrash out this question of law, the provisions of the Act are to be perused and read. While going through the Act,

Section 30 mandates, how an appeal can be filed and, against which order appeal can be filed. It is profitable to reproduce Section 30 of the Act

herein;-

Appeal. -- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely -

(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim

in full or in part for a lump sum;

[(aa) an order awarding interest or penalty u/s 4A;]

(b) an order refusing to allow redemption of a half-monthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person

alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-Section (2) of Section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to

conditions;

On plain reading of this provision, one comes to inescapable conclusion that appeal can be preferred only against the award.

There is no provision under the Act, in terms of which, an appeal can be preferred against the order of rejection of application moved in terms

of Order 9 Rule 13 CPC. No doubt, in terms of Order 43 Rule 1 of CPC, an appeal can be preferred but question is whether the said provision

has been made applicable in terms of the Act or Workmen's Compensation Rules 1924, hereinafter referred to as rules. Rule 41 of the rules reads

as under;-

Certain provisions of Code of Civil Procedure, 1908, to apply --Save as otherwise expressly provided in the Act or these Rules the following

provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rule 9 to 13 and 15 to 30: Order IX;

Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 and 2, shall apply to proceedings before

Commissioner, in so far as they may be applicable thereto:

As per this rule, certain specified provisions of CPC have been made applicable to the proceedings under the Act. Order 9 is also applicable as

per the said rules. Order 43 Rule 1 of CPC, is not applicable in terms of Rule 41 of the rules, referred hereinabove. Therefore, the appeal against

the order dated 07.04.2001, rejecting the application under Order 9 Rule 13 CPC is not maintainable.

It appears that appellant has also assailed the said award in terms of this appeal, as discussed hereinabove, and the delay caused in filing the

appeal stands condoned.

Now the question is, whether award has been passed rightly or wrongly? And, whether any substantial question of law is involved in the memo

of appeal? The substantial question of law stands already framed, as referred hereinabove. The perusal of the lower court record reveals that the

appellants had the knowledge of the accident thus there was no need to serve notice in terms of Section 10 of the Act. It is profitable to reproduce

Section 10 of the Act herein; -

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:]

This provision of law mandates that notice is must but there is no need to comply with the Section 10 of the Act if employer has the knowledge

of the accident. I have laid my hands on a judgment reported in Makhan Lal Marwari Vs. Audh Behari Lal, , respondent. It is profitable to

reproduce para-10 of the said judgment herein, which reads as under;-

To my mind, therefore, the present case firstly feel within the exception which provided that want of notice shall not be a bar to the

entertainment of a claim where the employer had knowledge of the accident etc. Secondly since all the relevant information had been given to the

appellant otherwise, the sending of a written notice letter, (later?) would have had no larger effect than compliance of a formality. The

Commissioner was not unjustified in holding that there was not sufficient cause for not sending notice. The appellant's contention with regard to

Section 10 either cannot prevail.

The Hon'ble High Court of Bombay in case Deep Metal Industries Vs. Gaikwad B.D., has also returned the same finding. The same ratio has

been laid down by Hon'ble Orissa High Court in 1995 LAB.I.C 2750.

It is also worthwhile to mention herein that the appellant has not raised this plea in the objections. Thus cannot raise this plea at this stage. The

plea which has not been raised before the Commissioner cannot be raised for the first time in the appeal. My this view is fortified by the judgment

reported in 1995 LAB.I.C. 2750. It is profitable to reproduce relevant portion of para-4 of the said judgment, which reads as under;-

No dispute appears to have been raised before the Commissioner that before presenting claim petition, requisite notice u/s 10 of the Act on the

insurer was not served. This defence having not been taken before the Commissioner, as evident from his order and not been stated in the written

statement filed by the insurer that claim petition was liable to be rejected because of lack of notice, that question cannot be raised for the first time

in this appeal. Fourth proviso to Sub-section (1) of Section 10 of the Act applies in full force to the facts of this case. According to the said

provision want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim 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 injured workman was

employed had knowledge of accident from any other source at or about the time when it occurred.

Thus applying the test to the instant case, the appellants had the knowledge of the accident in terms of letter of the Executing Engineer, the

reference of which is made in the impugned order.

While going through the impugned award and the file, one comes to inescapable conclusion that the respondent No. 1 was in the employment

of appellants and during the course of employment he sustained the injuries.

It appears that awarded amount stands already disbursed in terms of order passed by this Court on 3rd October 2002.

Having glance of the above discussion appeal merits to be dismissed.

Viewed thus the appeal is dismissed and impugned award is upheld. Send down the record.