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Bupa Singh Vs. Bishember Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in(1968)IILLJ654J& K
AppellantBupa Singh
RespondentBishember Singh and ors.
Cases ReferredIn Sitaram Ramcharan v. M.N. Nagrashna and Ors.
Excerpt:
- .....services of the appellant wee terminated with a view to defeating the right of the appellant to claim compensation, this was a sufficient cause within the meaning of the said proviso. it seems to me that there is some force in this argument which is presumably fortified by two division bench decisions in 1952-i l.l.j. 490 (vide supra) and a.i.r. 1934 bom. 28. perhaps this principle is based on the well-settled dicium that a person cannot be allowed to take advantage of his own fraud. indeed if this is not a sufficient cause, then the employer can always evade the law and the payment of compensation to his employees by retaining them in service on slightly higher emoluments for a period of one year and by terminating their services after the period of limitation for claiming.....
Judgment:

Jaswant Singh, J.

1. This is an appeal from the order dated 25 November 1967 of the learned Commissioner appointed under the Workmen's Compensation Act, dismissing the appellant's application for grant of compensation to the tune of Rs. 5,000 in respect of an injury alleged to have been sustained by the appellant in the course of his employment with the opposite parties who are his employers.

2. For a proper appreciation of the point involved in this application, it is necessary to set out a few facts which have a material bearing o the matter.

3. On 8 March, 1961, the applicant preferred an application under Section 10 of the Workmen's Compensation Act before the Commissioner claiming Rs. 5,000 from the respondents who were his employers. He alleged that on 6 April 1958 while he was on duty at the brick-kiln of the respondents, he was asked by respondent 1 to put petrol in the feel task of his car and while doing so, the petrol caught fire in consequence of which his right-hand get brunt and damaged resulting in a permanent loss of capacity to work. The petitioner further alleged that on his demand for compensation the respondents raised his wages from Rs. 90 to Rs. 125 per month and assured to keep him in the employment for the whole period of his life and that acting on the assurance, he did not take any proceedings for compensation. He further pleaded that the respondents did not honour the commitment and prematurely discharged him from service on 5 August 1960 and that despite his notice dated 8 December 1960, they had not paid him the compensation.

4. The respondents, while admitted the accident, resisted the claim alleging inter alia that the claim was time-barred as it had not been preferred within a year of the occurrence of the accident as required under the law.

5. The learned Commissioner dismissed the application holding the same to be time-barred. He has further held that the period of limitation provided under the law for preferring the claim can be extended only for a sufficient cause, which meant only such reasons as are ordinarily beyond the control of the applicant, and that even if the plea of the applicant was accepted he had not been able to explain the delay of about six to seven months reckoned from the date of his discharge from service.

6. In this appeal, Sri Raunaq Singh, the learned Counsel for the appellant, has urged that his client did not prefer his claim within a period of one year on account of the undertaking given by the respondents that they would keep him in their employment during the entire period of his life and would continue to pay him at the rate of Rs. 125 per mensem as his wages.

7. The point for determination is very simple and depends on the construction of Section 10 of the Workmen's Compensation Act. According to the said section, claim for compensation has to be made within one year of the date of the accident. Under the proviso to Sub-section (1) of the said section, the Commissioner has, however, the power to entertain and decide a claim to compensation in any case notwithstanding that the notice had not been given or the claim has not been made in due time, if he is satisfied that the failure to give notice or prefer the claim was due to sufficient cause. N Lingley v. Firth & Sons, Ltd. (1921) 1 K.B. 655 in which a woman worker claimed compensation on account of an injury sustained by her, it was held that mere fact that the workman elected to continue to remain in service did not constitute sufficient cause so as to entitle the workman to prefer the claim for compensation beyond the period of limitation provided for by the Act. This ruling has been followed in a Division Bench of the Calcutta High Court in 1952-I L.L.J. 609.

8. In Sitaram Ramcharan v. M.N. Nagrashna and Ors. 1960-I L.L.J. 29 which was an appeal from the judgment of the Bombay High Court 1954-II L.L.J. 703 their lordships of the Supreme Court while holding that the proviso to Section 10 of the Workmen's Compensation Act, was similar to the provisions of Section 5 of the Limitation Act, observed as follows by pg. 35:.It cannot be disputed that in dealing with the question of condoning delay under Section 5 of the Limitation Act, the party has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay. Therefore, the contention that if sufficient cause has been shown for not making the application within the period of six months prescribed by Section 15(2), then the application can be made, any time thereafter is not correct.

9. In the instant case, beyond the ipse dexit of the appellant which has not even been reiterated in his sworn testimony before the Commissioner, there is no other material on the file to substantiate the plea of the applicant that he did not prefer the claim in time as the respondent had promised to retain him in service for the whole of his lifetime, at the rate of Rs. 125 per mensem. Assuming without holding that the appellant did not prefer his claim on account of the alleged commitment of the respondent, he has not tried to explain the delay of nearly seven months, i.e., from 5 August 1960, when he was discharged from service to 3 March 1961, when the application was made by him before the Commissioner.

10. Sri Ranuaq Singh appearing for the appellant, has referred us to two rulings, namely, A.I.R. 1956 M.B. 122 and 1952-I L.L.J. 490. In the first ruling, namely A.I.R. 1956 M.B. 122 it has been held as follows:

If sufficient cause is made out for not filing a claim for compensation within twelve months of the accident, subsequent negligence or improper delay in making a claim will be immaterial. What the Court has to decide when a claim to compensation is lodged more than one year after the date of accident is whether there was sufficient cause for the claimant's omission to lodge the claim within twelve months and not whether there was a failure to account for subsequent delay in filing it beyond the prescribed period.

In the second ruling, namely, 1952-I L.L.J. 490 (vide supra), it has been observed as follows, by their lordships of the Calcutta High Court:

Under Section 10 read with the proviso, if a sufficient cause for not filing claim for compensation within twelve months of the accident is established, it is immaterial if there has been subsequent negligence or improper delay in making the claim.

11. These rulings are, however, of no avail to the learned Counsel for the appellant in view of the aforesaid ruling of the Supreme Court, in which it has been clearly laid down that the explanation for the delay must be such as to cover the whole of the period of delay.

12. Following therefore, the dictum of their lordships of the Supreme Court, in the aforesaid ruling, we are unable to hold that the appellant had sufficient reason for not preferring the claim in time or that he has been able to explain the delay subsequent to his discharge from service.

13. For the foregoing reasons, we find no merit in this appeal, which is dismissed but without any order as to costs.

Syed Murtaza Fazl Ali, C.J.

14. I agree with my brother, Jaswant Singh, J. that the appeal be dismissed without any order as to costs, but I would like to add a few words of my own.

15. It is disputed that the application claiming compensation was filed before the Commissioner about three years after the date of the accident. The appellant's counsel, however, relied on the second proviso to Section 10 of the Workmen's Compensation Act and argued that as the employer reemployed the employee, the appellant, after the accident on a higher pay with a definite assurance that he will be retained on a permanent basis and yet after the period of limitation for filing the compensation application was over the services of the appellant wee terminated with a view to defeating the right of the appellant to claim compensation, this was a sufficient cause within the meaning of the said proviso. It seems to me that there is some force in this argument which is presumably fortified by two Division Bench decisions in 1952-I L.L.J. 490 (vide Supra) and A.I.R. 1934 Bom. 28. Perhaps this principle is based on the well-settled dicium that a person cannot be allowed to take advantage of his own fraud. Indeed if this is not a sufficient cause, then the employer can always evade the law and the payment of compensation to his employees by retaining them in service on slightly higher emoluments for a period of one year and by terminating their services after the period of limitation for claiming compensation has expired. This will thus provide to the employer an ingenious device of circumventing the law which makes it incumbent on the employer to compensate his employee if the latter sustains an accident in the course of his employment. This, however, could never have been the intention of the law. I do not interpret the judgment of the Supreme Court in 1960-I L.L.J. 29 (vide supra) as disapproving this principle, but it can hardly be disputed that the fact that the employer had given such as assurance to the employee for retaining his services on a permanent basis has to be established by the employee beyond any doubt. I would, nevertheless, refrain from expressing any definite opinion on this aspect of the matter because in the instant case the employee (appellant) has neither proved to our satisfaction that such a definite assurance was given to his while his services were retained by the employer, nor has the appellant explained the delay of seven months in preferring his claim even if his services were terminated. It was suggested by the counsel for the appellant (though not indicated in the statement of the appellant before the Commissioner) that the delay was due to the fact that the appellant awaited the reply of the notice which he had given tot he employer for payment of compensation. Even assuming that this is a convincing explanation, the fact remains that the appellant has given no explanation whatsoever for the delay of a period of three months from the date of his dismissal to the giving of the notice, and on this ground alone as held by the Supreme Court in the above-acted case the appeal must fail.


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