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Panchanan Ghose Vs. Bhaggu Bari - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 28 of 1949
Judge
Reported inAIR1950Cal261
ActsWorkmen's Compensation Act, 1923 - Sections 2, 10 and 25; ;Evidence Act, 1872 - Section 45
AppellantPanchanan Ghose
RespondentBhaggu Bari
Appellant AdvocatePhanindra Kumar Sanyal, Adv.
Respondent AdvocateJitendra Mohan Sen Gupta and ;Jnan Chandra Ray, Advs.
DispositionAppeal allowed
Excerpt:
- .....there were sufficient grounds for failure to give notice. 13. as the respondent failed to give the notice of accident in this case and his failure cannot be condoned his claim was bound to fail upon this ground also.14. learned advocate for the appellant has also urged that there was really no evidence of in capacity or disablement. admittedly, no doctors were called and the learned commissioner has acted upon medical certificates. medical certificates are the worst form of hearsay evidence. they merely record what some-body who is not a witness has written. there is nothing to suggest that the parties agreed to be bound by these certificates and i cannot see that any order finding incapacity and the extent of incapacity can ever be founded upon a mere medical certificate. the.....
Judgment:

Harries, C.J.

1. This is an appeal by the employer from an order of the Commissioner for workmen's compensation awarding the respondent a sum of Rs. 441 together with certain costs as compensation in respect of an accident.

2. The workman's case was that he was employed by the appellant to load certain bricks into a lorry, to travel with the lorry and unload the bricks on arriving at the lorry's destination. It is said that whilst the respondent was travelling in this lorry on some day about seven months before the hearing before the Commissioner, the lorry travelling along a narrow path overturned. The workman who was travelling on the lorry, it is said, was thrown into a tank along side this narrow path and was injured by bricks from the overturned lorry falling upon him. The workman's case was that he sustained injuries in the chest and on left hand, left knee and waist.

3. The appellant denied that the respondent was a workman within the meaning of the Act and he denied that there was any accident or that he had notice of any accident.

4. Evidence was called before the Com-missioner upon which he held that the respondent had been injured by accident arising out of and in the course of his employment and assessed the compensation at the sum of Rs. 441 for partial disablement.

5. A number of grounds have been taken in this appeal and it appears to mo that the judgment of the Commissioner for workmen's compensation cannot possibly be maintained on any ground whatsoever. The learned Commissioner has proceeded to decide this case without any reference whatsoever to the provisions of the Act.

6. In the first place, the Commissioner has decided that the respondent is a workman. In ordinary parlance, the respondent was clearly a workman; but for the purposes of workmen's compensation he mast be a workman as defined in the Act. Section 2(n) defines 'workman' as follows:

' 'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is

* * *

(ii) employed on monthly wages not exceeding four hundred rupees, in any such capacity as is specified in Schedule II'.

7. Schedule II specifies a large number of capacities in which the parsons who are employed are workmen within the meaning of the term as used in the Workmen's Compensation Act.

8. The learned Commissioner appears to have thought that the case of the respondent fell within Cl. (xxvi) of sch. II of the Act. That clause provides that a person

'employed in the handling of transport or goods in or within the precincts of,

(a) any warehouse or other place in which goods, are stored and in which on any one day of the preceding twelve months ten or more persons have been so employed; or

(b) any market in which on any one day of the preceding twelve months one hundred or more persons have been so employed.'

9. All the evidence amounted to was that this man was employed to load bricks into a lorry and to unload them. Where this loading took place was not stated, and there was no evidence at all that the handling of these bricks or the transport of these bricks took place in or within the precincts of any warehouse or market or in any place, in any warehouse or other place where on any one day of the preceding twelve months ten or more persons had been employ-ed, or in or within the precincts of any market in which one hundred or more persons had been employed on any day within the preceding twelve months. How the learned Commissioner could have held that this man was a workman within the meaning of cl. (XXVI of Sch. II upon the evidence I am wholly unable to say. It is quite clear that there was no evidence at all upon which it could be held that the respondent applicant was a workman and therefore he could not have obtained any compensation under, the Act.

10. A point was also taken by the appellant by way of defence that no notice of the accident had been given by the respondent and an issue was framed giving rise to this question. The respondent gave no evidence at all that he had given his employer any notice of the accident, and it is to be observed that the employer so far from admitting any notice of the accident denied that there ever had been an accident or that he ever had notice of such an accident. Upon that state of the evidence, the learned Commissioner found that there was an accident as stated and that the matter was known to the opposite party in due coarse; but clearly that is a finding upon no evidence whatsoever. The Commissioner is not entitled to find that the appellant before us must have become aware of this accident in due course unless there is evidence upon which he can so find. According to the appellant he hired this lorry every day and there is nothing to suggest in the evidence that the appellant was ever told about any accident, if an accident did in fast take place. The Commissioner for workmen's compensation is not allowed to guess. He is an officer exercising judicial functions and he can only find facts upon evidence. As I have said there is no evidence at all that any notice of this accident was ever given by the workman or on his behalf.

11. It is true that by reason of Section 10(1)(b) notice need not be proved, if it is established that the employer had knowledge of the accident from any other source at or about the time when it occurred. But that the employer had knowledge of the accident requires to be proved like any other fact and further it must be proved that he had knowledge of the accident at or about the time when it occurred. The Court cannot treat notice of an accident as unnecessary, for example, when the employer had obtained knowledge of the accident many days or weeks later. In the present case, however, there is no evidence that the employer ever knew of this accident until this claim was made and admittedly a claim for compensation is not notice of an accident. The Workmen's Compensation Act requires a claim for compensation to be made within twelve months and also notice of the accident unless such notice can be dispensed with for the reasons given in Section 10.

12. The learned Commissioner could have held in this case that the failure to give notice was not fatal to the claim, if he was satisfied that there was sufficient cause for failing to give the notice. The learned Commissioner has not dealt with the matter at all and has not considered whether there was sufficient or any cause for not giving the notice. He seems to have found that no notice was given but as he appears to have thought that as the employer must have got to know of this accident such (sic) was sufficient. The law however requires notice of the accident and such notice is only rendered unnecessary if the Court is satisfied on evidence that the employer knew from other sources of the accident at or about the time it took place, or if there were sufficient grounds for failure to give notice. 13. As the respondent failed to give the notice of accident in this case and his failure cannot be condoned his claim was bound to fail upon this ground also.

14. Learned advocate for the appellant has also urged that there was really no evidence of in capacity or disablement. Admittedly, no doctors were called and the learned Commissioner has acted upon medical certificates. Medical certificates are the worst form of hearsay evidence. They merely record what some-body who is not a witness has written. There is nothing to suggest that the parties agreed to be bound by these certificates and I cannot see that any order finding incapacity and the extent of incapacity can ever be founded upon a mere medical certificate. The Commissioner also noted that he had seen the workman. The Commissioner is not a medical man and in this class of litigation malingering and false claims are notorious and I am sure that the Commissioner would find it very difficult to say whether an alleged injury to a joint was real or not. However, all the Commissioner had in this case were medical certificates together with his own observation. However, it is not necessary to consider this question further because it is puite clear that this order cannot possibly be sustained and must be set aside.

15. In the result therefore I would allow this appeal, set aside the order of the Commissioner for workmen's compensation and dismiss the workman's claim.

16. No order is made for costs.

Sarkar, J.

I agree.


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