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Joaquina Cardoze Vs. Shipping Corporation of India Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberAppeal No. 256 of 1964
Judge
Reported inAIR1968Bom265; (1966)IILLJ823Bom
ActsWorkmen's Compensation Act - Sections 8, 10, 10A, 10A(1), 10A(2), 10A(4) and 15 - Rule 20; Payment of Wages Act - Sections 15; Indian Limitation Act - Sections 5
AppellantJoaquina Cardoze
RespondentShipping Corporation of India Ltd.
Excerpt:
.....invites application for compensation - commissioner not bound to suggest to dependents to make application - application made by dependent without suggestion on part of commissioner under section 10 a (4) would be governed by section 15 - application made after suggestion from commissioner is governed by limitation. - - 15 of the workmen's compensation act speaks about the commissioner being satisfied. in the first place he need not be satisfied that death has occurred out of or in the course of his (workman's) employment; in other words, it is not necessary that the commissioner is satisfied that the accident has risen out of or in the course of the employment. 10 and 15 prescribed different periods of limitation in different contingencies and are clearly exhaustive and..........her the corporation had disowned their liability and telling her that it was open to her to make an application for compensation. on 21 august, 1962, the applicant made the application for compensation on the ground that her husband died while he was on duty and in the course of his employment with the opposite party. she claimed a sum of rs. 4,000 by way of compensation from the opposite party. 3. the opposite party appeared and raised a number of contentions with which we are not concerned at this stage. the preliminary contention raised by them was that the application is barred by limitations. the commissioner upheld that contention and dismissed the application as it is barred by limitations. it is against that judgment, the applicant has now come up in appeal. 4. sri dias.....
Judgment:

1. This is an appeal by the applicant from the judgment of the Commissioner for workman's Compensation, Bombay, dismissing her application for compensation owing to the death of her husband arising out and in the course of his employment. Briefly stated the facts are as follows.

2. Joao Fernandes, the husband of the applicant, was serving on the ship known as 'Desh Sevak' belonging to the Shipping Corporation (hereinafter referred to as Corporation) on 30 December, 1959. While the said Joao Fernandes was on board the ship he died in harness in an accident near what is known as 'harbour.' The applicant is a resident of Goa. She received a letter on 4 January, 1960 from the Shipping Master of Shipping Corporation of India Ltd., informing her that her husband had died by drowning. A copy of this letter was sent to Commissioner for Workmen's Compensation on 13 January, 1960 : the Commissioner wrote a letter to the opposite party under S. 10A of the Workmen's Compensation Act asking them whether they were prepared to deposit the amount of compensation as required by S. 8 of the Workmen's Compensation Act. On 25 April, 1960, the Shipping Master wrote a letter to the Commissioner for Workmen's Compensation wherein he referred to a copy of the letter dated 4 January, 1960 received by him. On 14 February, 1962 the Commissioner wrote a further letter to the Corporation. Thereafter there were three reminders issued by the Commissioner to the Corporation on 14 February, 1962, 21 February, 1962 and 5 March, 1962. It appears that the Corporation had informed the Commissioner that they were not liable to pay compensation by reason of the fact according to them death had not occurred in the course of the employment. In substance they disowned their liability. On 4 April, 1962. The Commissioner wrote a letter to the appellant at Goa informing her the Corporation had disowned their liability and telling her that it was open to her to make an application for compensation. On 21 August, 1962, the applicant made the application for compensation on the ground that her husband died while he was on duty and in the course of his employment with the opposite party. She claimed a sum of Rs. 4,000 by way of compensation from the opposite party.

3. The opposite party appeared and raised a number of contentions with which we are not concerned at this stage. The preliminary contention raised by them was that the application is barred by limitations. The Commissioner upheld that contention and dismissed the application as it is barred by limitations. It is against that judgment, the applicant has now come up in appeal.

4. Sri Dias for the appellant contended that in the first place the period of limitation prescribed in Ss. 10 and 15 of the Workmen's Compensation Act is not applicable to the present case in view of the fact that the Commissioner for Workmen's Compensation has informed the applicant under S. 10A(4) of the Workmen's Compensation Act that it was open to her to make an application. According to Sri Dias this amounts to invitation to make an application. He argued that for such an invited application no period of time is prescribed in the Workmen's Compensation Act. Secondly he contended that assuming that period of limitation laid down is S. 15 is applicable to the present case the Commissioner had ample power to condone the delay. In that connexion he referred to the wording of the proviso to S. 15 and pointed out that the wording of this proviso differs from the wording of proviso to S. 15 of the Payment of Wages Act and also the wording of S. 5 of the Indian Limitation Act. He pointed out that whereas under the proviso to S. 15 of the Payment of Wages Act and S. 5 of the Indian Limitation Act, the burden is cast upon the applicant to satisfy the Court that there was sufficient cause for the delay. The proviso to S. 15 of the Workmen's Compensation Act speaks about the Commissioner being satisfied. In that connexion Sri Dias pointed out that the Commissioner has not considered the case made out by the amendment to the application, which was dated 19 February, 1963. In the main application the applicant had referred to the restrictions of travel imposed by the Government of India between Goa and Bombay. It was pointed out on behalf of the opposite party that Goa was liberated on 20 December, 1960 and therefore there was no longer any restriction regarding travel between Goa and Bombay. By way of answer to this contention the applicant stated that she had no funds and that she had small children to look after and that she was not in a position to leave them alone in Goa and come down to Bombay for making an application. He also quarrelled with the view taken by the learned Commissioner, namely, that every day's delay must be accounted for. According to Sri Dias, this observation made by the learned Commissioner is based upon a misreading of the decision of the Supreme Court in Ramlal, Motilal and Chhotalal v. Rews Coalfields, Ltd. : [1962]2SCR762 .

5. I will first deal with the first point relating to there being no period of limitation when the Commissioner chooses to invite the applicant to make an application under S. 10A(4). Section 10A(4) was inserted by Act 15 of 1933, whereas the relevant proviso of S. 15 of the Workmen's Compensation Act was introduced by Act 8 of 1959. Section 10A(1) empowers the Commissioner to send a notice to the employer requiring him to submit, within thirty days after the service of the notice, a statement giving the circumstances attending the death of the workman and indicating whether, in the opinion of the employer, he is or not liable to deposit compensation on account of the death. The Commissioner can send such a notice to the employer, whatever be the source of his information, regarding the death of the workman. Sub-section (2) of S. 10A of the Workmen's Compensation Act allows the employer to make a deposit within thirty days from the service of the notice in case, in his opinion, he is liable for the compensation. Sub-section (3) lays down that if the employer is of opinion that he is not liable to deposit the compensation, he shall, in a statement, indicate the grounds on which he disclaims, his liability. It is on Sub-section (4) that the entire argument was built. It provides :

'Where the employer has so disclaimed his liability, the Commissioner, after such enquiry as he may think fit, may inform any of the dependents of the deceased workman that it is open to the dependents to prefer a claim for compensation and make use of other information as he may think fit.'

6. It is clear from the phraseology employed in S. 10A that the Commissioner is not to adjudicate any claim but that he is only acting in his administrative capacity. In the first place he need not be satisfied that death has occurred out of or in the course of his (workman's) employment; whatsoever the source of his information the Commissioner may issue a notice to the employer calling upon the latter to submit a statement giving circumstances attending the death of the workman. In other words, it is not necessary that the Commissioner is satisfied that the accident has risen out of or in the course of the employment. It is clear from the wording of Sub-secs. (2) and (3) of S. 10A of the Workmen's Compensation Act that it is open to the employer either to admit his liability or to disclaim the same; and in case the employer has disclaimed the liability the Commissioner has power to proceed further in the matter. Sub-section (4) comes in the picture when the employer had disclaimed the liability. All that the Commissioner can do at this stage is to inform the dependents that the liability has been disclaimed and suggest that the dependants, if so advised, may prefer an application for compensation. In that case it is not correct to say that the Commissioner invites an application. It is necessary to note that the Commissioner is not bound to suggest to the dependents to make an application. The Commissioner is expected to hole some sort of enquiry and on the basis of that enquiry if he feels that he should make a suggestion to the dependent to apply he may do so. On the other hand, if he feels, on the basis of the enquiry held by him that there is no material, he may not write any letter to the dependents at all. The argument advanced by Sri Dias that because the Commissioner has suggested to the dependant to make an application the period of limitation prescribed in S. 15 of the Workmen's Compensation Act does not apply, appears to me fallacious. The provisions of Ss. 10 and 15 prescribed different periods of limitation in different contingencies and are clearly exhaustive and must cover all cases of application filed under the Act. As pointed out by Sri Setalvad, the legislature has taken meticulous care to prescribe different periods of limitations and also to give separate starting points of limitation. Section 15 contains special provisions relating to masters and seamen. Section 15 is a counterpart of S. 10 so far as masters and seaman are concerned. Section 15 also makes separate provisions for ordinary accident and an accident which has led to death. It is not necessary to go into the details of the provisions contained in S. 15. It is clear to my mind that S. 15 is intended to cover all cases of applications made under the Act as between master and seaman. If the argument advanced by Sri Dias is correct, then it would mean that for certain applications there is no period of limitations prescribed. This result indeed will be anomalous. As stated above, the Commissioner may not make any suggestions to the dependent to prefer a claim for compensation at all. Evidently application made by the dependent without any suggestion on the part of the Commissioner under S. 10A(4) would be governed by S. 15. If this is so, it would be anomalous to hold that an application made after the suggestion from the Commissioner is not governed by any limitation at all.

7. Turning to the other argument, rule 20 of the Workmen's Compensation Act provides that an application referred to in S. 22 may be sent to Commissioner by registered post or may be presented to him in person. The learned Commissioner has laid stress upon this aspect of the matter. If an application can be sent by a registered post, then the case made out about the travel restrictions, about the poverty of the applicant, about the necessity of the applicant to remain with her children, vanished away. In my view, the question as to whether the burden had been cast upon the applicant by the proviso to S. 15 is of academic importance. It is true that the Commissioner chose to be satisfied whether there was sufficient cause for the failure to make an application in time. The only point that was made out in the application as regards delay was the restrictions on travel. It is necessary to note that it is not the case of the applicant that she received the information about the death late. It is an admitted fact that she was informed about the death some time in January 1960. She could, therefore, send an application by registered post before the end of January, 1961. The fact that the restrictions on travel were removed by the end of December, 1960, goes to show that she could have come down to Bombay to make an application within the period of limitation. No explanation has been offered as to why she was unable to send her application at least by registered post within the prescribed period. It is necessary to note that even after the intimation was given by the Commissioner on 4 April, 1962, the filing of the application was delayed up to 21 August, 1962. On the facts of this case the question whether it is necessary for the applicant to account for delay of seven days beyond the period of limitation does not require to be considered. It is, therefore, needless to refer to the two decisions of the Supreme Court in : [1962]2SCR762 and : (1960)ILLJ29SC to which reference was made by Sri Dias. The result is that the appeal fails and dismissed. No orders as to costs.


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