John Beaumont, Kt., C.J.
1. This is an appeal under the Workmen's Compensation Act against the award of the learned Commissioner awarding a sum of Rs. 448 as compensation to the workman.
2. The facts as found by the learned Commissioner are that on July 5, 1939, the workman was working on a lathe in the workshop of the appellant, and got a particle of something into his eye. He admittedly did not give notice at once of the accident, but the next day did not attend work, and he says that he told his fellow employee, Ambalal, to tell the Mistry the reason for his not attending. Ambalal denies that story, and the learned Commissioner has not found as a fact whether Ambalal was told or not. The learned Commissioner has not found the facts very clearly. According to the evidence, however, the workman went to his doctor the day after the accident, and the doctor gave him some treatment. A day after that the workman complained that he could not see, and, at any rate, three days after the accident he was in great pain. Apart from his having, as he says, sent word through Ambalal, that he was remaining absent, he still gave no notice. But he says that he went to the factory eight or ten days after the accident, and then gave notice to the Mistry, but the Mistry says that he did not pass this information on to the Manager, although he usually passed on information to the Manager about an accident. The learned Commissioner says that it is curious that he did not pass on the information, but whether he believed the Mistry or not, I do not know. Eventually the workman gave notice to the Factory Inspector on July 18, that is thirteen days after the accident, and the Factory Inspector then wrote to the employers, and this was the first written notice. Even assuming that the Mistry passed on the information about the accident when he received it from the workman, that was, according to the evidence, some eight or ten days after the accident. The learned Commissioner has found as a fact that the accident arose out of and in the course of the employment, and he has also found that there was sufficient cause for not giving earlier notice of the accident, and this appeal is brought on the ground that the Commissioner was wrong in holding that there was sufficient cause for not giving notice.
3. The material provisions of the Act are contained in Section 10. The section provides:
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.
Then there are certain provisos, the third of which is in these terms:
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.
So that the Commissioner may entertain the claim, notwithstanding the failure to give notice as soon as practicable, if he is satisfied that the failure was due to sufficient cause.
4. The first question, which arises, is whether there is a right of appeal against the opinion entertained by the Commissioner that there was sufficient cause to justify the workman in not giving notice. A bench of this Court in Hallemabi v. Ardeshir (1932) 35 Bom. L.R. 293. held that the question whether there was sufficient cause is a question of law, and that an appeal lies, therefore, against a decision of the Commissioner on such question under Section 30 of the Act, I am not quite sure myself that the Court paid sufficient attention to the words of the provison which show that it is for the Commissioner, and not for the Court, to be satisfied, and, if satisfied, he can entertain the claim. However, the question whether there was any evidence before the Commissioner on which he could properly be satisfied is undoubtedly a question of law on which this Court can interfere. For the purpose of this case it is not necessary to go beyond that, because the argument of the appellants is that there was no evidence before the Commissioner on which he could hold that there was sufficient cause for not giving notice in proper time.
5. It is clear that the necessity of giving notice of an accident is imposed for the protection of the employer. Section 11 enables the employer to get the workman examined by his own medical practitioner, after he receives notice of an accident. The notice is required both to enable the employer to check the fact of the accident having occurred to the workman in the course of his employment, and also to enable the employer to take such steps as he may think fit to mitigate the consequences of the accident; and it is obviously important that the notice be given as soon as practicable after the accident, as the section provides.
6. I agree with the view expressed in the case to which I have referred, Halemabi v. Ardeshir, that it is not necessary for a workman to give notice of every trivial accident to which he may be subject: a mere knock which gives him a bruise, or some particle getting into his eye, which would probably recover by the next day, would not necessitate notice. On the other hand, I am inclined to think that Mr. Justice Patkar in that case went rather too far in saying that the workman need not give notice of any accident unless he thinks that the accident is one which will give rise to a claim for compensation. I think a workman is bound to give notice of any accident which is not merely trivial, and it is not for him to decide whether it is likely to give rise to a claim for compensation. If an accident, too trivial in the first instance to require notice, subsequently develops serious consequences, I am of opinion that the obligation to give notice as soon as practicable would be met by giving notice when the consequences ensue. Until then, there has not really been an accident. In the present case I will assume that in the first instance a particle of metal flying into the workman's eye was not an accident of; which he was required to give notice, but any injury to the eye is, of course, likely to develop into something serious; and it seems to me that on the evidence of the workman himself, and of the doctor to whom he went, it is plain that within three days at the outside the accident had developed into a serious matter, and the workman was bound to give notice. I am satisfied that within three days of the actual accident there was in fact an injury which showed that the accident was one of which notice was required to be given, and the learned Commissioner gives no reasons for holding that there was sufficient cause for not giving notice then. It is clear that, even if the workman did give notice to a fellow workman, that is not sufficient. Under Sub-section (2) of Section 10 notice must be served upon the employer or upon any person directly responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed. It is obvious that a co-employee does not come within that description. So that giving notice to Ambalal, even if it was given, was useless. The obligation to serve the notice suggests that it must be a written notice, in which case the notice to the Mistry could not be relied upon; but, in any case, the notice to the Mistry, even if passed on to the Manager, was too late, because it was given six or seven days after the accident had to the knowledge of the workman become one in respect of which he was required to give notice. In my opinion, therefore, there was no evidence before the learned Commissioner on which he could hold that there was sufficient cause for not giving notice of the accident as soon as practicable. That being so, we must allow the appeal and set aside the award.
7. I agree.