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Kesoram Cotton Mills Ltd. Vs. Bal Govind - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 128 of 1951
Judge
Reported inAIR1953Cal667,57CWN435
ActsWorkmen's Compensation Act, 1923 - Section 10; ;Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101
AppellantKesoram Cotton Mills Ltd.
RespondentBal Govind
Appellant AdvocatePhanindra Kumar Sanyal, Adv.
Respondent AdvocateNalini Kanta Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredKamarhati Jute Mills Co. Ltd. v. Abdul Samad
Excerpt:
- .....of the employer which would lead him to believe that he could get compensation without making a claim, no reasonable cause would be shown. these observations must, however, be read in the light of the facts of the case which i have broadly summarised.the third case referred to by mr. sanyal is in the same volume of butterworth's compensation cases, at page 504. it is the case of --'soyer v. johnson matthey & co.', (1927) 20 b w c c 504 (d). that again was a case where a workman, employed as a chef, suffered an injury in his right hand but his employers, although they knew of the accident, were not aware that the workman could not do his full share of the work. when at last he was dismissed about ten months after the accident, he made a claim for compensation. the only excuse pleaded.....
Judgment:

Chakravartti, C.J.

1. The only question of substance argued in this case is one of limitation. The respondent used to be a workman under the appellant -- Keshoram Cotton Mills Ltd. -- and was employed in the hosiery department. In September 1948, he was going up a ladder with a load on his head, when it fell and as the workman himself slipped, the load descended on his left leg and in doing so, passed across his chest and spine. The injury caused by that accident was that he suffered a fracture of the left ankle which has been described as 'Pott's fracture' and some injuries on his chest and spine.

2. The workman was absent from duty for a few days, but continued in the employment of the Mill. He was, however, given lighter work. In July 1950, he was apparently asked to return to the job of carrying loads which he was unable to do. Thereupon he was dismissed. The application for compensation was filed in Court on 17-12-1949.

3. It is not necessary to refer to the other defences raised by the appellant. As usual, they included a plea that no accident had taken place at all and that, in any event, assuming that the workman had suffered an accident, he had not done so in the course of his employment. Those pleas have been laid to rest by the judgment of the commissioner and need not trouble us further.

4. The question as to whether the respondent had made a claim within the period laid down in Section 10 of the Act is, however, a question of law, and Mr. Sanyal who appeared on behalf of the appellant, concentrated his argument on that question. He contended that the commissioner had been wrong in holding that the failure of the workman to prefer the claim within one year from the occurrence of the accident had been due to sufficient cause. It may be stated here that the learned Commissioner relied on the fact that the workman, after having suffered the injury and after his working capacity had been reduced, had been continued in employment, had been given lighter work and had been in receipt of the same pay. In view of those facts, he considered that the decision in -- 'Salamat v. The Agent, East Indian Rly.', : AIR1938Cal348 covered the case and accordingly he held in favour of the workman.

5. Mr. Sanyal contended that the mere fact that a workman after having suffered an accident, was retained in the employment of the employer could not be sufficient cause for his not perferring the claim within the statutory period. According to Mr. Sanyal, there would have to be some tacit understanding between the employer and the workman about paying his compensation in future if, on such facts, delay in preferring the claim was to be excused; or, at least, there would have to be something done by the employer which might create a belief in the workman that he could reasonably expect compensation, if need to claim it arose. In support of his contention Mr. Sanyal relied upon a series of cases, beginning inevitably with the decision in -- 'Lingley v. Thomas Firth & Sons Ltd.', (1921) 1 K B 655 (B).

6. 'Lingley's case (B)' as is well known, is the root authority on the question as to what is reasonable cause for not serving a notice or making a claim within the statutory period. The case if I may say so with respect, seems to have been widely misunderstood. The facts in that case were that a munition-worker was injured by a shell falling upon her toe and although, after that accident, she was in constant pain and could hardly work in a standing posture, she suppressed the accident from her employers and did everything in her power to make them think that she was in perfect health and in enjoyment of full working capacity. For example, if any of the officials employed by the concern she was serving, happened to pass before her, she used to stand up, just to create an impression that nothing whatever was the matter with her. It was pointed out by all the learned Judges who decided the case that the worker conducted herself in that fashion because she was in receipt of very substantial wages and did not want to take the risk of losing them by notifying the accident she had suffered. In those circumstances, the question which the Court had to consider was whether the fact that the worker herself did not consider the injury to be serious and kept it from the knowledge of the employers for her own purposes was a reasonable cause within the meaning of Section 2, Sub-section 1(b) of the corresponding English Act. The answer given by all the learned Judges was in the negative and they said that the fact that she contrived to be retained in her job could not be reasonable cause. It is difficult to see how this case could ever serve as an authority for the proposition that the fact that a workman continued in the employment of his employers, could not, as a matter of law, be sufficient cause for not preferring a claim within the statutory period whatever the other circumstances. The case, however, has often been quoted and relied upon as establishing that broad proposition.

7. Mr. Sanyal next referred to the case of -- 'Drewett v. Britannia Assurance Co. Ltd.', (1927) 20 B W C C 434 (C), and drew our attention particularly to the observations of Scrutton L. J. To my mind, it is perfectly clear from the facts of that case why it was held that no reasonable cause for not making the claim within the statutory period had been made out. The accident took place on 16-4-1926 and the workman was paid full wages, although he was incapacitated, till 3-9-1926. On the last-mentioned date he was summarily dismissed and thereupon he threatened to bring an action against his employers for wrongful dismissal, but did not make a claim under the Workmen's Compensation Act. The period prescribed by the English Act is a period of six months and it will be noticed that 3-9-1926, was within six months of April 16, of the same year.

What the learned Judges pointed out in that case is that, within six months from the accident, the parties were at arm's length, and if the workman could think of going to Courts of law with a claim for damages, there could be no reasonable cause for his not making a claim under the Workmen's Compensation Act. It is true that Scrutton, L.J. expressed himself in general language as well, because he said that if the failure to make a claim was prompted by the workman's own interests and was not induced by any action of the employer which would lead him to believe that he could get compensation without making a claim, no reasonable cause would be shown. These observations must, however, be read in the light of the facts of the case which I have broadly summarised.

The third case referred to by Mr. Sanyal is in the same volume of Butterworth's Compensation Cases, at page 504. It is the case of --'Soyer v. Johnson Matthey & Co.', (1927) 20 B W C C 504 (D). That again was a case where a workman, employed as a chef, suffered an injury in his right hand but his employers, although they knew of the accident, were not aware that the workman could not do his full share of the work. When at last he was dismissed about ten months after the accident, he made a claim for compensation. The only excuse pleaded by the workman was that he had thought that he would receive compensation if incapacity supervened in the future without the necessity of making a claim, and in that state of the facts it was held that since the employers had done nothing to encourage such a view, no reasonable cause had been shown.

8. I cannot see how these cases can be said to lay down any broad or inviolable principle. On the other hand, there is the case decided by this Court upon which the Commissioner has relied and so far as the judgment itself is concerned, the facts upon which it proceeds are certainly not weaker than the facts of the present case. Mr. Sanyal contended that the evidence extracted by the learned Chief Justice in his judgment in that case showed that some promise to pay compensation had been given. But the judgment itself did not proceed on any such fact. Reference was also made to the decision of Harries C. J. and Das J. in --'Messrs. National Tobacco Co, (India) Ltd. v. Hardit Singh', : (1952)ILLJ609Cal (E) and the decision of the same learned Judges in --'Kamarhati Jute Mills Co. Ltd. v. Abdul Samad',. : (1952)ILLJ490Cal (F). In those cases it was held on the facts which the Court had before it, that sufficient cause had not been shown. In so far as general principles were sought to be laid down, to a certain extent at least, they seem to me, with great respect, to be based upon a misreading of 'Lingley's case (B)'.

9. We are sitting here in appeal and what we have to decide is whether the Commissioner took a view which is a reasonable view on the facts of the case and a view which is correct in principle. It need hardly be pointed out that 'sufficient cause' admits of an infinite variety of forms and it will be a vain endeavour to lay down any general principles. The present case is not merely one of continuing in the old employment and nothing more. The broad facts in the present case are that the workman suffered an injury which reduced his working capacity; that the employers, knowing of that injury and knowing of the reduced working capacity, continued to employ him and paid him the same wages; and the most important of all is the fact that they put him on a lighter job. The commissioner has taken the view that, in those circumstances, the workman had sufficient cause not to provoke a conflict with his employers and not to prefer a claim till his interests were prejudicially affected by dismissal and so long as he was receiving a kind of compensation in the shape of lighter work and the same pay. With regard to that finding, I think I can rightly express myself in the language of the English cases by saying that there was evidence to support that finding and no misdirection.

10. For the reasons given above this appeal is dismissed with costs, the hearing-fee being assessed at two gold mohurs.

S.R. Das Gupta, J.

11. I agree.


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