(1) Two matters call for decision in this appeal. One is the question of limitation. The other is the question of liability of the appellant to reimburse the respondent. On facts there is no dispute excepting with regard to the second matter inasmuch as that matter has not been determined. So really it cannot be said that there is any dispute as to facts even on that. The appellant is the company engaged in the manufacture of cycle parts at Jullundur. Raj Kumar is one of their employees. He met with an accident while engaged in his employment with the appellant company (Messrs. K. R. Beri and Company) on the 19th of July 1955. The company as well as Raj Kumar are insured with the Employee's State Insurance Corporation constituted under the Employee's State Insurance Act 1948 which a Central Act. Temporary disablement benefit was allowed to Raj Kumar. On the 1st of October 1956, the Corporation filed an application under Section 66 of the Act for reimbursement against the company both for the temporary and permanent partial disablement benefit.
It may be mentioned that it was only after this application that the Medical Board on the 3rd of November 1956 held that Raj Kumar had been permanently partially disabled and fixed the quantum of compensation at 50 per cent. It is common ground that the cause of action for reimbursement regarding permanent partial disablement benefit arose on the 3rd or November 1956. The application filed on the 1st of October 1956 was allowed so far as the reimbursement regarding temporary disablement benefit is concerned but was rejected regarding the permanent partial disablement benefit on the ground that it was premature. This led to the present application on 8th May 1958 under Section 66 of the Act for eimbursement of the permanent partial disablement benefit allowed to Raj Kumar. This application was opposed by the company on two grounds namely that it was barred by limitation and that there was no negligence or wrongful act on the part of the company which resulted in the accident giving rise to the claim of Raj Kumar. At this stage it will be proper to set out the relevant provisions of the Act. Section 66 and Regulation 45 are in these terms:
'Section 66. Corporation's right to recover damages from employer in certain cases; (1) Where any employment injury is sustained by an insured person as an employee under this Act by reason of the negligence of the employer to observe any of the safety rules laid down by or under any enactment applicable to a factory or establishment or by reason of any wrongful act of the employer or his agent, the Corporation shall notwithstanding the fact that the employer has paid the weekly contributions due under that Act is respect of such insured person be entitled to be reimbursed by the employer or the principal who is liable to pay compensation under Section 12 of the Workmen's Compensation Act, 1923, the actuarial present value of the periodical payment's which the Corporation is liable to make under this Act.
(2) For the purposes of this Act, the actuarial present value of the periodical payments shall be determined in such manner as may be specified in the regulations.'
'Reg. 45. When claim becomes due--A claim for any benefit under the Act shall for the purposes of Section 80 of the Act, become due on the following days;
(a) for sickness benefit or for disablement benefit for temporary disablement for any period on the date of the issue of the medical certificate in respect of such period; provided that in cases where a waiting period is required the due date shall be deferred by the number of days of such waiting period;
(b) for maternity benefit, on the date of issue, in accordance with these regulations, of the certificate of expected confinement or on the day six weeks preceding the expected date of confinement so certified, whichever is later or, if no such certificate is issued, on the date of confinement;
(c) for disablement benefit; for permanent disablement, on the date on which an insured person is declared as permanently disabled in accordance with these regulations; and
(d) for dependant's benefit, on the date of the death of the insured person in respect of whose death the claim for such benefit arises or the date from which a beneficiary becomes entitled to a claim, as the case may be.'
Limitation for application is provided under Section 80 of the Act and Rule 17 of the Employees' Insurance Court Rules 1949. Both of them are in these terms;
'Section 80. Benefit not admissible unless claimed in time.--An Employees' Insurance Court shall not direct the payment of any benefit to a person unless he has made a claim for such benefit in accordance with the regulations made in that behalf, within twelve months after the claim became due;
Provided that if the Court is satisfied that there was reasonable excuse for not making a claim for the benefit due, it may direct the payment of the benefit as if the claim had been made in time'.
'Rule 17. (1) Limitation.--Every application to the Court shall be brought within twelve months from the date on which the cause of action arose or as the case may be the claim became due;
Provided that the Court may entertain an application after the said period of twelve months if it is satisfied that the applicant had sufficient reasons for not making the application within the said period.
(2) Subject as aforesaid the provisions of Parts II and III of the India Limitation Act, 1908 shall so far as may be applied to every such application.'
The period of limitation prescribed for an application under Section 66 in twelve months and the terminus a quo is the date on which the Medical Board declares a persons entitled to permanent partial disablement benefit. The Employees' Insurance Court gave the Corporation the benefit of the proviso to Section 80 and Rule 17 and held the application to be within limitation but for this application benefit the application, according to the Court, was clearly barred by time. With regard to the other matter on the question of quantum of reimbursement, the Court came to the conclusion that it was rightly claimed but with regard to the real matter namely as to whether there was any negligence or wrongful act on the part of the company, no finding has been given. Dissatisfied with this decision, the company has come up in appeal to this Court. Two contentions have been raised before me by Mr. Tuli, learned counsel for the company. The first contention is that the decision of the Court on the question of limitation is erroneous and on the facts and circumstances of this case, the Corporation is not entitled to the benefit of the provisions. He further the negligence or the wrongful act of the company, no order as to reimbursement should have been made.
(2) On the question of limitation, the argument of Mr. Tuli proceeds thus. The first application was made when the cause of action for permanent partial disablement had not arisen and, therefore, it was dismissed as premature and for proceedings which are taken at a time when cause of action had not arisen, no benefit under Section 14 of the Limitation Act can be allowed to the Corporation which has to file an application within the period prescribed under Section 80. He further contends that in any case there is no explanation for the delay between the 20th of February 1958, dismissal of the first application, and 8th of May 1958, the date on which the present application was filed, and the period taken by the Corporation to present the second application after the dismissal of the first application cannot be considered to be a reasonable period, and therefore also they are not entitled to the benefit of the proviso to S. 80 and Rule 17.
This argument is met by the learned counsel for the Corporation on the short ground that it does not matter that the proceedings were premature. The earlier proceedings certainly were on the same cause of action and, therefore, he is entitled to the benefit of section 14 of the Limitation Act and if that benefit is allowed to him, it is stated by the learned counsel for the Corporation, then the application would be within time. For this contention, he placed reliance on Maneklal Kalidas v. Shivlal Dayaram Luvar AIR 1939 Bombay 26. This decision certainly supports his contention. On the other hand, Mr. Tuli relies on the decision of the Calcutta High Court in Dwarkanath Chakravarti v. Atul Chandra, AIR 1919 Cal 381, where observations to the contrary were made by the Calcutta High Court and it was held that the benefit of Section 14 cannot be allowed to a party for proceedings prematurely instituted. Rustomji while dealing with this matter in his Treatise on Limitation Act (Sixth Edition) at page 159 observe as under:
'Failure of a suit on the grounds that it is not maintainable or that it disclose no cause of action or is premature; such cases are not covered by Section 14, as the suit fails, nor for defect of jurisdiction, etc., but because it is misconceived.'
In view of this conflict of judicial opinion, it is proper that the matter is decided by a larger Bench. I accordingly direct that the papers of this case be placed before may Lord the Chief Justice for constituting a Division Bench or a Full Bench to dispose of the appeal particularly when a Letters Patent Appeal lies as of right and the matter is not free from difficulty.