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Makhan Lal Marwari Vs. Audh Behari Lal - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 4 of 1954
Judge
Reported inAIR1959All586
ActsWorkmen's Compensation Act, 1923 - Sections 10, 22, 25 and 32; ;Code of Civil Procedure (CPC) , 1908 - Order 18, Rule 5; Workmen's Compensation Rules - Rules 20(2) and 28
AppellantMakhan Lal Marwari
RespondentAudh Behari Lal
Appellant AdvocateD.P. Khare, Adv.
Respondent AdvocateH.K. Ghose and ;K.S. Verma, Advs.
DispositionAppeal dismissed
Excerpt:
(i) labour and industrial - notice -section 22 of workmen's compensation act, 1923 - no notice required to the employer demanding compensation - issue arose between the parties and not settled by private agreement - asking for compensation is enough. (ii) compensation - section 10 of workmen's compensation act, 1923 - accident in the presence of employer - no notice is required for asking compensation - absence of notice under section 10 is no bar in the entertainment of claim. - - there is yet another proviso which says that the commissioner may entertain a claim even though a notice has not been given, if he is satisfied that failure so to give the notice was due to sufficient cause. another exception is where the com-missioner is satisfied that the failure to give notice was due to..........manufactory on 1-1-1953. there is no dispute also that the appellant was in any case at the place of accident soon after and that he had been acquainted with the circumstances in which the accident took place. as a matter of fact the respondent's allegation was, and this was accepted by the commissioner also, that the appellant was personally present when the accident took place. if this allegation is accepted the accident took place in the immediate presence of the appellant and he was naturally in full possession of the facts relating thereto. and even if it be admitted for a moment, though the finding of the court below is to the contrary, that the accident did not take place in the immediate presence of the appellant, he had nevertheless arrived there soon after and been.....
Judgment:

J.K. Tandon, J.

1. This is an appeal under section 30 of the Workmen's Compensation Act, 1923, against an order dated the 1st December, 1953, passed by the Commissioner under that Act and has arisen under the following circumstances:

2. The respondent Avadh Bihari Lal claimed that he was a workman and was working as a fitter on the fodder-cutting machine owned and worked by the appellant. He was working at it on 1-1-1953 and cutting fodder when his right arm accidentally slipped into the machine and five fingers were cut off and his right arm was also rendered useless. Admittedly, he was thereafter treated for this injury in the hospital but the fingers were finally lost.

On 30-1-1953 Avadh Bihari Lal moved the Labour Commiasioner for awarding the compensation under the Workmen's Compensation Act, 1923, for the aforesaid injury. This application was later sent By the Labour Commissioner to the District Magistrate, Sitapur, on .17-2-1953 for awarding Compensation to Avadh Bihari Lal under the Act. As, however, this application was not considered to be in proper form by the Additional District Magistrate, who was Commissioner under the Workmen's Compensation Act, Avadh Bihari Lal was asked on 23-2-1953 to present a formal application which he did on 20-3-1953,

3. On this latter application Makhan Lal was asked to file his reply which after a number of postponements he did on 6-8-1953. It was stated in the application dated 20-3-1953 that Avadh Bihari Lal was an operator at the said fodder cutting machine on Rs. 47/- a month. The details of the accident were also given in it and it was further stated that the applicant had asked Makhan Lal to give him compensation but the latter was avoiding it and there was no alternative but to apply for payment of compensation under the above Act. In the written statement filed by Makhan Lal the fact of the accident was admitted.

It was also admitted that the five fingers of the right hand of the applicant were cut oft while he was working at the machine on 1-1-1953. It was, however, disputed that the applicant was an employee of the appellant as also his being a workman within the meaning of the Workmen's Compensation Act. The applicant had alleged that the accident took place in the presence of the appellant obviously intending thereby to show that the circumstances including the time and occasion of the accident were within the personal knowledge of the appellant. The appellant in his turn dia not admit that he was present at the time of the accident but he nevertheless admitted that he was sent for from a near-by shop where he was at the moment and came to know on arrival the circumstances in which the accident took place. This aspect of the case will be material when considering the objection by the appellant with regard to the compliance of Section 10 of the Workmen's Compensation Act, I shall revert to it in due course.

4. The appellant having disputed his liability for compensation, the Commissioner recorded the evidence of the various witnesses produced by one or the other party in support of their respective contentions and ultimately awarded a sum of Rs. :1,310 to the plaintiff-respondent. The present appeal is directed against the above order.

5. One of the grounds taken by the appellant in this appeal was that the respondent was not a workman within the meaning of that expression under the Workmen's Compensation Act, 1923. Another ground taken was that the claim of the respondent was barred under section 22 of the Workmen's Compensation Act. The former, however, was not pressed by the learned counsel and in the case of the latter a half-hearted argument was addressed that no question had arisen between the parties so as to entitle an application to be made. Section 22(1) provides that no application for the settlement of any matter by a Commissioner shall be made unless and until some question has arisen between the parties in connection therewith which they have been unable to settle by agreement.

6. The contention is (sic) that prior to filing the application for awarding compensation the respondent gave no notice nor made any similar demand for payment of compensation was rejected by the appellant. No question had, therefore, arisen between the parties which they were unable to settle by agreement and, therefore, needed to be decided by Commissioner. There is clear allegation in the application presented by the respondent that he wanted the appellant to pay him compensation but the latter was avoiding to do so.

There was thus a clear assertion that demand for compensation had been made but had not been acceded to. No doubt, it does not appear from the record that any formal notice in that behalf was served by the applicant on the appellant which was repelled by the appellant but section 22 does not contemplate any such contingency. All that the section requires is that a question actually arose between the parties and was not settled by private agreement. Both these facts are borne out from the application, dated 20-3-1953. Under the circumstances the appellant's contention in respect of the non-compliance of section 22 cannot be accepted.

7. Section 10 of the Act has laid down that no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner later provided in the section, as soon as practicable, after the happening of the accident. It is contended that no such notice had been sent by the respondent in this case. Subsection (2) in making provision for the contents and form of the notice requires that every such notice shall give the name and address of the person injured and shall state the cause of the injury and the date an which the accident happened. It also requires that it shall be served on the employee or the manner etc. Admittedly no written notice of the type contemplated by Sub-section (2) was sent to the appellant by the respondent in this case.

One of the grounds, therefore, urged by the appellant is that the claim presented by the respondent was not entertainable. This point appeared to have been pressed before the Commissioner also, who, however, repelled it as in his opinion there was sufficient cause for not doing so. The second proviso to Sub-section (1) of section 10 of the Act says that want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim, if the employer of the business, in which the workman was employed, had knowledge of the accident from any other source at or about the time when it occurred. There is yet another proviso which says that the Commissioner may entertain a claim even though a notice has not been given, if he is satisfied that failure so to give the notice was due to sufficient cause.

8. The scheme of Section 10, therefore, is that a notice of the accident to the employer is necessary before a claim for compensation can be entertained by the Commissioner. But there are exceptions to this general rule. These exceptions are where the employer had knowledge of the accident from any other source at or about the time when it occurred, want of notice will not obstruct the entertainment of a claim. Another exception is where the Com-missioner is satisfied that the failure to give notice was due to sufficient cause. The Commissioner found that there was sufficient cause in this case for the respondent for not sending the notice. Learned counsel for the appellant has contended that the petition of claim presented by the respondent never pleaded the grounds due to which a notice was not sent, in fact the applicant never asked exemption from the provision of section 10 in his application; it was, therefore, wholly wrong on the part of the Commissioner to have held that there was sufficient cause.

9. In view of what shall be presently stated it does not appear necessary for disposing of this appeal to enter into the question whether the compensation Commissioner was entitled to hold in the present case that there was sufficient cause for not sending a notice, as the case is, in any event, covered by the other proviso. This other proviso, as was noticed earlier, provided that want of notice shall not be a bar to the entertainment of a claim if the employer had knowledge of the accident from any other source at or about the time when it occurred.

It is admitted that the accident took place at the appellant's manufactory on 1-1-1953. There is no dispute also that the appellant was in any case at the place of accident soon after and that he had been acquainted with the circumstances in which the accident took place. As a matter of fact the respondent's allegation was, and this was accepted by the Commissioner also, that the appellant was personally present when the accident took place. If this allegation is accepted the accident took place in the immediate presence of the appellant and he was naturally in full possession of the facts relating thereto. And even if it be admitted for a moment, though the finding of the Court below is to the contrary, that the accident did not take place in the immediate presence of the appellant, he had nevertheless arrived there soon after and been apprised of the true facts.

In either view of the matter, therefore, he had been apprised of the facts at or about the time when the accident took place. Once this is conceded the absence of notice will not be of any avail in view of the provision referred to above in Section 10. Sub-section (2) of Section 10 requires the name and address of the person injured, the cause of the injury and the date on which the accident took place to be communicated by notice. All these facts were certainly brought to the notice of the appellant immediately after the accident, in any case, sending of a formal notice afterwards would under the circumstances have had no greater effect than going through the formality laid down in section 10.

10. To my mind, therefore, the present easel firstly fell 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.

11. The only other argument addressed by the learned counsel was that the Commissioner failed in this case to observe the procedure prescribed for the hearing of claims. Firstly it was pointed out that Rule 20 of the Workmen's Compensation Rules required that every application for compensation shall be accompanied by a certificate signed by the applicant to the effect that the statement of facts contained in the application was true to the best of his knowledge and belief.

It is said that no such certificate was attached in this case, hence the application was inherently bad. The second contention is that the Commissioner ought to have framed issues in the case before proceeding to record evidence but he did not do so. And the third objection is that the evidence of the witnesses was recorded not by the Commissioner in his own pen but by his Reader which was contrary to the provision of the Code of Civil Procedure which applied to these proceedings. So far as the last objection is concerned it may be pointed out, without going into the further question whether the provisions of the Code of Civil Procedure in this respect were in fact applicable, that the Commissioner has in fact attached a note at the end of each deposition that it had been recorded at his dictation owing to his inability to do so. If the provisions of the Code of Civil Procedure were applicable they have thus been fulfilled.

With regard to the other two objections, while it appeared that the claim petition was not accompanied with any certificate, as required by rule 20(2), the non-compliance was at the most an irregularity which did not vitiate the trial. More so, as the facts are not disputed in this case. And as to the failure to frame issues the judgment of the Commissioner does mention the various points which had arisen for consideration. It is urged that these points were not drawn out before the evidence started and there was no compliance of Rule 28 of the Workmen's Compensation Rules which required issues to be struck.

It is not possible from the record to state definitely that issues had in fact been struck previously but at the same time it cannot be said that the parities were prejudiced by failure, if any, to frame them. In fact, each party adduced whatever evidence it considered necessary in the case. There was no controversy either so far as the main facts were concerned. The points at issue were mostly questions of law. Under the circumstances I do not think any prejudice occurred by non-compliance, if any of Rule 28 either.

12. In view of what has been said above, this appeal should fail; the same is accordingly dismissed with costs.

13. Learned counsel for the appellant hasasked for leave to appeal to a Division Bench. Ido not consider the case to be a fit one for grantingthe leave. The request is refused.


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