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Salamat Vs. Agent, East Indian Railway - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Limitation
CourtKolkata
Decided On
Reported inAIR1938Cal348
AppellantSalamat
RespondentAgent, East Indian Railway
Cases ReferredLingley v. Firth
Excerpt:
- .....within six months of the accident provided that the commissioner may admit and decide any claim to compensation in any case notwithstanding the claim has not been instituted in due time as provided in the sub-section, if he is satisfied that the failure so to give the notice or institute the claim, as the case may be was due to sufficient cause. this particular provision is somewhat similar to the provision of section 14, english workmen's compensation act 1925, which provides:(1) proceedings for the recovery under this act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim.....
Judgment:

Derbyshire, C.J.

1. This is an appeal by the workman Salamat against the decision of the Commissioner for Workmen's Compensation, Bengal, given on 5th August 1936 wherein he refused to award compensation under the Workmen's Compensation Act to the appellant. The respondent is the Agent of the East Indian Railway Company. The facts are as follows. In 1925 the workman was employed at the railway workshop at Lilooah, then owned by the East Indian Railway administration, but now taken over and run by the East Indian Railway Company. Whilst he was so employed, an accident happened when he was operating a machine saw with the result that his thumb and the first three fingers of the left hand were damaged and had to be amputated. After attending hospital for three or four months, he returned to the same workshop and was employed by the 'same employers on the same or other work on which he earned the same wages as before. As time went on, his wages were increased and he actually received promotion. On 2nd August 1935, he was discharged from work because he was found to be in possession of some jute which was believed to be stolen. On 14th January 1936, the appellant, through a pleader, applied for re-instatement and also for compensation under the Workmen's Compensation Act. The respondent refused this. On 22nd February 1936, another similar request for re-instatement and compensation was made and this was again refused. On 28th March 1936 the applicant started proceedings before the Commissioner for Workmen's Compensation to recover compensation under the Act in respect of the accident which had occurred in 1925. The Commissioner refused to award him compensation first, holding that it was not proved that an accident had happened to the applicant which arose out of and in the course of his employment and, secondly that the delay to bring the proceedings for a period of 11 years barred the applicant of his rights under the Act. As regards the first ground for the Commissioner's decision, I am unable to agree with him. The applicant in his evidence said:

I was a workman on E.I.R. and injured during my employment. I was engaged on a saw machine on 4th November 1925. My hand was injured--the left. All my fingers were shorn off except the little finger. I was sent by the administration to Lilloah Hospital and admitted and remained three months. When I was discharged I went back to the Railway and was told to go to work. I asked for compensation to the foreman and was told arrangement would be made. I was given suitable employment. I often made tagid. Formerly I got 12 annas per day and thereafter 12 annas per day. I brought no claim in the Court because the foreman kept on putting me off. About four years ago the foreman was transferred. Then I was promoted and did not think it judicious to bring a claim.

2. That is the applicant's story. The respondent by reason of the delay is in a difficult position as regards giving evidence as to the happening of the accident. It is difficult to produce witnesses after 11 years to speak with any certainty as to the circumstances of the accident. Some of the respondent's records have been destroyed, but not all of them. The respondent called a witness-Dharmadas Ghose-who produced a register of accidents for 1925. He gives a description of Salamat and his injury. The respondent in his written statement, para. 5, admits that

on 4th November 1925 an accident happened to the applicant when ho was employed as a labourer and thereby the following injury was caused to the applicant - 'compound commutated fracture of thumb index, middle and little fingers of the left hand'.

3. The learned Commissioner did not feel himself justified upon that evidence and those admissions in coming to a conclusion that the accident which happened, arose out of and in the course of the applicant's employment. There is no suggestion anywhere in the evidence or in the written statement that the applicant was, at the time of the accident, doing something which disentitled him to compensation by reason of the Proviso to Section 3 (1) of the Act. That being so, in my view, the Commissioner ought to have come to the conclusion that this appellant workman did suffer an injury from an accident arising out of and in the course of his employment on 4th November 1925. The second matter that I have to consider is that which is raised by Section 10 of the Act. Leaving out the irrelevant words and passages that section provides:

Sub-section (1). No proceedings for the recovery of compensation shall be maintainable before a Commissioner unless notice of the accident has been given in the manner hereinafter provided, as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been instituted within six months of the occurrence of the accident or, in case of death within six months from the date of death:

Provided further, that the Commissioner may admit and decide any claim, to compensation in any case notwithstanding that the notice has not been given, or the claim has not been instituted, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or institute the claim, as the case may be, was due to sufficient cause.

4. No question arises here as to the employer having had notice of the accident. The only questions arising are (1) was the claim instituted within six months of the occurrence of the accident and, if not (2) was the failure to institute the claim within six months due to sufficient cause? The workman alleged in his evidence that he made tagid to the foreman in respect of this compensation, that is to say he made demands to the foreman to be paid compensation. When he went back to work which was within six months of the accident were those tagids or demands, claims within the meaning of Section 10? The Act does not provide that claims shall be made in writing, but it does provide that a claim shall be made within six months unless there is sufficient cause for it not being made. In my view a claim within the meaning of Section 10 is a communication by or on behalf of the workman from which the employer can see that a demand is being made upon him to pay compensation in respect of an accident. Here the employer is a railway company, a very large concern. I cannot see that a demand by a workman to a foreman for compensation (if indeed it was made) is a claim within the meaning of Section 10. After all a foreman is only a fellow workman in a superior position. He is not, in my view, a person authorized by his employer to receive claims or to deal with them. Claims ought to be made to someone higher in authority who can see that they are brought to the notice of that branch of the executive of the Railway which is charged with the administration 'of matters arising out of this Act.

5. Apart from the tagids alleged to have been made from time to time there is no evidence of any proper claim until January 1936 when a demand was made upon the railway company by the appellant's pleader. That was a demand made 10 years or more after the accident. The learned Commissioner considered that matter very carefully and came to the conclusion that that demand was too late, according to the terms of Section 10. We have had the advantage which the learned Commissioner had not, of having this matter argued before us by advocates who have studied this section of the law at some length, and I for my part have come to a conclusion different from that arrived at by the learned Commissioner. Under Section 10, proceedings are not maintainable unless the claim for compensation has been instituted within six months of the accident provided that the Commissioner may admit and decide any claim to compensation in any case notwithstanding the claim has not been instituted in due time as provided in the sub-section, if he is satisfied that the failure so to give the notice or institute the claim, as the case may be was due to sufficient cause. This particular provision is somewhat similar to the provision of Section 14, English Workmen's Compensation Act 1925, which provides:

(1) Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury, or, in case of death within six months from the time of death. Provided that (b) the failure to make a claim within the period above specified shall not be bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from the United Kingdom, or other reasonable cause.

6. Our attention was naturally attracted to the provisions of Section 14 of the English Act. As I have said, in some respects, that is a similar provision to Section 10, of the Indian Act, but there is this difference, in my view, important difference; in the English Act failure to make a claim within six months may be excused if the failure was occasioned by 'mistake, absence from the United Kingdom or other reasonable cause'; whereas in the Indian Act failure may be excused if it is due to sufficient cause'. The English provision gave rise to much difficulty in application and it may well be that when the draftsmen of the Indian Act came to deal with this matter they avoided the words 'occasioned by mistake, absence from the United Kingdom or other reasonable cause' and deliberately put in the words 'due to sufficient cause'.

7. What is 'sufficient cause'? That can only be decided in each particular case with reference to the facts and circumstances of that case. The question before us is had the workman sufficient cause for not instituting his claim against his employers within six months of the accident? The workman on returning to work three months after the accident was re-employed by the same employers in the same workshop at the same rate of wages and he continued in that employment at those wages until long after the period of six months from the happening of the accident had gone by (actually he continued in that employment for nearly ten years afterwards). Had the workman within six months from the happening of the accident sufficient cause for not instituting a claim [against his employers? In my view he had. He was in work, and likely to remain in work on the same wages as before and that in my view was sufficient cause for his not bringing proceedings under the Workmen's Compensation Act within six months of the accident. It has been said that the workman ought not to have delayed ten years and that by delaying these proceedings for ten years he is in some way barred from bringing these proceedings. As far as I can see, the Limitation Act does not apply to proceedings under the Workmen's Compensation Act. It appears to me that once the workman had, for sufficient cause, not brought his proceedings within six months, there is nothing in the Workmen's Compensation Act, the Limitation Act or in any other statute to prevent him bringing his proceedings when he did. A somewhat similar position was considered under Section 2, Workmen's Compensation Act, 1906 (which was replaced by Section 15, Workmen's Compensation Act, 1925) in Lingley v. Firth & Sons, Ltd. (1921) 1 KB 655. At page 661, Lord Sterndale M. R. said:

In my opinion the learned Judge was right in saying that this bar of six months being once got rid of by reasonable cause for the failure to make the claim within the specified period, the appellants cannot take up the ground that although the failure within the six months was excused there has been subsequent unreasonable delay. As long as no Statute of Limitation has been infringed I think the learned Judge was quite right as to that, and that the proper construction is that the only thing with which that proviso is dealing is the failure to make a claim within the six months; that being gone the bar is gone also. That is the point which is of general importance.

8. At page 665, Warrington L.J., said:

It appears to me that if it is found that the failure to make the claim within six months was occasioned by reasonable cause, then the bar provided by the statute is gone altogether, and that' any subsequent delay has no effect, except so far, of course, as it may bring into operation any general statutory enactment as to limitation which would apply to the case.

9. I am of the opinion therefore that although it may place, and doubtless does place, the respondent in a difficult position with regard to collecting evidence to meet the applicant's case yet there is nothing in the Workmen's Compensation Act or in any other statute as far as I have been able to ascertain which prevented the workman from bringing the proceedings at the time he did in this particular case. That being so, I am of the opinion that this matter must go back to the Commissioner for Workmen's Compensation,, Bengal, for him to deal with the appellant's application according to law in the light of the judgment here delivered. The appellant; is entitled to the costs of this appeal, the hearing fee being assessed at three gold mohurs.

B.K. Mukherjea, J.

10. I agree.


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