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N. Pochiah and Co. Vs. Mulle Nagabhushanam - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 45 and 47 of 1962 and C.M.P. Nos. 1497 of 1962 and 8623 of 1964
Judge
Reported inAIR1966AP99; (1966)IILLJ846AP
ActsWorkmen's Compensation Act, 1923 - Sections 2(1), 3, 3(1), 10(1), 10(2), 11 and 22(2); Workmen's Compensation Rules, (Andhra Pradesh) 1923 - Rule 40
AppellantN. Pochiah and Co.
RespondentMulle Nagabhushanam
Appellant AdvocateP. Shivshankar, Adv.
Respondent AdvocateS.L. Chennakesavarao, Adv.
DispositionAppeals allowed
Excerpt:
.....3 to section 10 (1) of workmen's compensation act, 1923 - petitioner filed two petitions to claim compensation for accidents which occurred on two different dates - commissioner for workmen's compensation disposed claims by condoning delay as application filed beyond prescribed time - appeals filed against common order of commissioner for workmen's compensation - petitioner could not file application within time as he was under impression that employer will settle his dispute - valid reason for not claiming within prescribed time. (ii) validity of single award out of two petitions by petitioner - rule 40 of workmen's compensation rules, (andhra pradesh) - object of rule 40 is that each case has to be heard separately - commissioner cannot hear two cases simultaneously as two..........reasonable cause for failure of the injured workman to give notice of the accident, or to claim compensation within the statutory period is a question of law, and that the commr.'s decision on the question is open to review by the high court. he, therefore, invited me to consider whether, in the circumstances, the delay could be condoned. the reasons given by the commissioner in his order dated 10-7-1961 for condoning the delay are stated as follows:--1. that the employer was promising the workman to pay the compensation, and ultimately he did not pay;2. that the workman was not aware of the situation of the labour office and hence, could not make the application in time; and3. that the workman continued to be in the employment of the respondents and continued to draw wages even.....
Judgment:

Venkatesam, J.

1.These two civil miscellaneous appeals are against a common order dated 28-12-1961 of the Commissioner for Workmen's Compensation, Andhra Pradesh Hyderabad in W. C. Cases Nos. 305/60 and 110/61.

2. The short facts necessary for disposal of these appeals may be stated:--The petitioner, Mulls Nagabhushanam (hereinafter called the workman) made a claim for compensation under the Workmen's Compensation Act, 1923 (hereinafter called the Act) against N. Pochaiah and N. Lakshminarayana. In the first petition, he claimed compensation for the loss of the index finger of the right hand as a result of an accident, which took place in June 1957. In the second petition, he claimed compensation for the loss of the left arm below the elbow on 9th June, 1958 as a result of another accident, both the accidents having arisen out of and in the course of the employment with the respondents therein. Both the petitions were filed on 16-12-1960. Under Section 10(1) of the Act, an application claiming compensation must be made within two years of the occurrence of the accident, and as such both these applications were beyond time. The Commissioner for Workmen's Compensation, however, condoned the delay in making those applications, and disposed of the claims on their merits. He found that the employer of the Workman (Mr. Nagabhushanam) was the first respondent before him viz. N. Pochaiah and Co. He also found that the two injuries were sustained by the workman out of and in the course of his employment with the respondents. On those findings, he held that the total loss of the earning capacity sustained by the workman under Section 4(1)(c)(i) of Schedule I to the Act was 56-2/3 per cent of the total earning capacity and determined the amount of compensation at Rs. 1,428/- and passed an order directing the respondents to pay that amount and a further sum of Rs. 24 towards expenses.

3. Aggrieved by the order of the Commissioner the employer, N. Pochiah and Co., filed one appeal to this Court. The office took the objection that, since the order of the Commissioner related to two injuries resulting from two accidents, which took place on two different dates, two appeals must be filed. The Advocate for the appellants was confronted with a problem, as the order of the Commr. was a comprehensive one and could not be read as two awards in a common order, and the Commissioner, had not even apportioned how much of the compensation is to be paid for the loss of the index finger of the right hand, and how much for the loss of left arm. However the advocate complied with the objection of the office, and filed two appeals, which are numbered as stated above.

4. The arguments of the learned counsel for the appellants are as follows;--

1. The Commissioner was not justified, in condoning the delay in making the two claims;

2. The Commissioner ought to have passed two separate awards in respect of each of the injuries; and

3. The conclusion of the Commissioner that the 1st respondent, N. Pochaiah and Co., was the proprietor and liable to pay compensation is erroneous.

5. I will consider them seriatim. Sri Shiv Shankar, the learned counsel for the appellants placed reliance on the decision in Halemabi v. Ardeshir, AIR 1933 Bom 197 and contended that the question whether the facts found by the Commissioner tinder the Workmen's Compensation Act constitute reasonable cause for failure of the injured workman to give notice of the accident, or to claim compensation within the statutory period is a question of law, and that the Commr.'s decision on the question is open to review by the High Court. He, therefore, invited me to consider whether, in the circumstances, the delay could be condoned. The reasons given by the Commissioner in his order dated 10-7-1961 for condoning the delay are stated as follows:--

1. That the employer was promising the workman to pay the compensation, and ultimately he did not pay;

2. That the workman was not aware of the situation of the Labour Office and hence, could not make the application in time; and

3. that the workman continued to be in the employment of the respondents and continued to draw wages even after the happening of the two accidents, arid he was paid more that what he was getting during the four years previously, and hence he could not think of starting legal proceedings against the employer.

6. The Commissioner accepted the truth of these grounds and condoned the delay. At any rate, grounds Nos. 1 and 3 are very plausible. A workman in our country is not so literate and conscious of his rights as to rush to the Labour Commissioner for enforcement of his lights, especially when the employer was promising to settle his claim. It may be remembered that the first injury was not a serious one. It was only a loss of the index finger of the right hand. There is also the further fact that he continued to be in service thereafter, till lie was the victim of the second accident, which resulted in the loss of the left arm. Even thereafter, he continued under the same employer and he was paid, in spite of his physical disabilities, more wages than what he was getting previously. In those circumstance, it is very probable that he would not have thought of starting legal proceedings, implicitly believing that his employer would also settle his claim. It is only when he was disillusioned that he filed his application under Section 10 of the Act.

7. According to Section 10(1), no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner provided, and unless the claim is preferred within two years of the occurrence of the accident. Under the third proviso to Sub-section (1) of Section 10, the Commissioner may, however, entertain and decide any claim for compensation in any case notwithstanding that the notice has not been given or fie claim has not been preferred in due time as provided in Sub-section (1) of Section 10, if he is satisfied that the failure so to give the notice or to prefer the claim, as the case may be, was due to sufficient cause. In this case, the workman, no doubt, gave notice of the two accidents, bat admittedly, had not preferred the claims within two years from the happening of the accidents. The Commissioner, on a consideration of all the circumstances, held that there was sufficient cause for the workman for not preferring the claims within two years. I am also of the same opinion and I cannot say that the Commissioner has committed any error in condoning the delay. This objection of the learned counsel for the appellant is, therefore, overruled and the claims in respect of both the injuries will be entertained as having been made in time.

8. The next submission on behalf of the appellants is that the claims were made by the workman in respect of two injuries resulting from two different accidents, and are the subject matter of two different applications, and that he should have, therefore, passed two awards and that a single award fixing a lumpsum of Rs. 1452 is unsustainable. Even granting that they are connected cases, he could not award a lumpsum for both the injuries. In order to appreciate this contention, it is necessary to refer to the relevant provisions of the Act.

9. The preamble itself says that the object of the Act is to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. Section 2(g) defines 'partial disablement' and Section 2(i) 'total disablement' and both of them refer to the reduction of the earning capacity of a workman in any employment in which he was engaged at the time of the accident. Section 3(1) creates the liability of the employer to pay compensation and reads thus:

'31(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter.'

The section makes it manifest that the liability of an employer is to pay compensation for an injury caused to him by an accident arising out of and in the course of his employment. Section 10(1) also lays down that a claim for compensation shall not be determined by the Commissioner unless notice of the accident has been given in the prescribed manner and unless the claim is preferred within two years of the occurrence of the accident. The third proviso to Sub-section (1) of Section 10 has already been referred to Section 10(2) indicates that the notice shall give the name and address of the person injured, the cause of the injury and the date on which the accident happened. Section 11 lays down that, where a workman has given notice of an accident, he shall, if the employer, before the expiry of three days from the time at which service of notice has been effected, offers to have him examined free of charge by a qualified medical practitioner, submit himself for such examination. Section 22(2) lays down that an application to the Commissioner may be made in such form and shall be accompanied by such fee, if any, as may be prescribed and shall contain, among other particulars, the date of service of notice of the accident on the employer and, if such notice has not been served or has not been served in due time, the reason for such omission.

10. A combined reading of the above provisions makes it clear that the basis of liability of an employer to pay compensation is for every injury sustained by a workman, arising out of and in the course of his employment. The provisions of the Act require the date of the accident and the intimation of the date of the accident to be stated in the application, and the period of limitation is fixed as two years from the time of the accident. All these provisions make it abundantly clear that the cause of action to claim compensation accrues to a workman on the happening of an accident, and the fact that the two claims for compensation were made by the same workman on the same date would not alter the position.

11. The Commissioner observed that the petitions were heard simultaneously because they pertained to the injuries sustained by the workman in accidents arising out of and in the course of his employment. Rule 40 of the Rules framed by the Andhra Pradesh Government under this Act lays down the procedure to be followed in connected cases thus:--

'40. Procedure in connected cases:--

(1) Where two or more cases pending before a Commissioner arise out of the same accident, and any issue involved is common to two or more such cases, such cases may, so far as the evidence bearing on such issues is concerned he heard simultaneously.

(2) Where action is taken under sub-rule (1) the evidence bearing on the common issue or issues shall be recorded on the record, of one case, and the Commissioner shall certify under his hand on the records of any such other case, the extent to which the evidence so recorded applies to such other case, and the fact that the parties to such other case had the opportunity of being present, and, if they were present, of cross-examining the witnesses.'

12. The, object of this rule is obvious viz., that each case must be heard separately and hearing the petitions separately is the rule and hearing them simultaneously an exception, which is permitted subject only to the conditions mentioned in that Rule. One important conditions is referred to therein is: --

'Where two or more cases pending before a Commissioner arise nut of the same accident'. The two claims in the instant case cannot he said to arise out of the same accident and, therefore, the Commissioner is not justified in hearing them simultaneously. It may, no doubt, be true that the question whether N. Pochaiah & Co., are the proprietors of the Saw Mill or N. Lakshminarayana is the proprietor of the Saw Mill, may be common to born the claims, but that does not warrant his invoking Rule 40. Though the evidence may be same, the Commissioner cannot help recording it in each ease separately, it follows that a single award based upon the illegal procedure followed by the Commissioner, and awarding a lumpsum compensation for both the injuries is unsustainable, and has to be set aside.

13. This objection of the appellants is therefore, upheld and the order of the Commissioner is hereby set aside.

14 In view of my finding on point No 2, it is unnecessary for me to express any opinion on the question whether N. Pochiah and Co., are the proprietors of the Saw Mill or Lakshminarayana is the proprietor of the Saw Mill at the time of the accident. That is a question which will have to be gone into by the Commissioner afresh on the evidence, which will be placed before him by both the parties.

15. In the result, the appeals are allowed and the common order of the Commissioner for Workmen's Compensation in W. 6. Case Nos. 305/60 and 110/61 is set aside, and both the petitions are remanded to the Commissioner for fresh disposal in accordance with law. The Commissioner would hold a separate enquiry in respect of each of the petitions, record the evidence separately, frame the issues and give his findings on each of them in accordance with the Act and the rules.

16. It is needless to add that both the parties will be given opportunity to adduce evidence, oral and documentary in each of the petitions. It is represented that the workman had already furnished a third party security when the compensation amount was withdrawn. The Commissioner will, I have no doubt, consider why the same security should not continue till the disposal of the petitions by him. No order as to costs.

C. M. P. Nos. 1497/1962 and 8823/1964

No orders are necessary.


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