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1950 DIGILAW 34 (KER)

C. K. M. Union Ltd. v. M. O. John

1950-06-13

GANGADHARA MENON, KOSHI

body1950
Judgment :- 1. This is an appeal by the employer against the award of compensation to a workman in respect of a personal injury caused to him by an accident arising out of and in the course of his employment. The respondent was a bus driver in the employment of the appellant M/s. C.K.M. Union Service Ltd., Chengannoor. On 15.5.1122 while the respondent was driving the bus No. T.R.V. 3682 from Ranni to Punalur it capsized on the way. The respondent suffered serious injuries including the fracture of his left leg. He was immediately removed to the Government Hospital at Kozhencherry where his left leg was amputated below the knee. He was treated there as an in patient for some time. Immediately after his discharge from the Kozhencherry Hospital he proceeded to Bombay for treatment and returned after treatment by the end of January 1948. On his return he approached the Managing Director of the appellant Company for compensation for the injury sustained by him. The Board of Directors of the Company decided that no compensation is payable to the respondent and their decision was duly communicated to him. The respondent thereafter filed an application before the District Court, Mavelikara for permission to sue in forma pauperis. But later on he withdrew that application with the leave of the Court and filed an application under the Workmen's Compensation Act before the Commissioner on 1.10.1123. 2. The appellant contested the claim of the workman on several grounds. The learned Commissioner repelled these contentions and by his order under appeal awarded Rs. 1900 as compensation to the respondent to be recovered from the employer - company. The company has therefore preferred this appeal under S.34 of Act XIII of 1114 of Travancore. 3. Though several grounds are taken in the memorandum of appeal covering almost all the contentions raised in the two written statements filed by the appellant before the Commissioner, the learned Advocate for the appellant has urged before us only two points. 4. First it is contended that the application for permission to sue in forma pauperis filed by the workman before the District Court, Mavelikara is a suit for damages in respect of the injury against the employer in a Civil Court and that by virtue of the provisions of sub-s. 5 of S.3 the workman is precluded from claiming any right to compensation under the Workmen's Compensation Act. Ext.1 is the copy of the application to sue in forma pauperis filed by the workman before the District Court of Mavelikara. Subsequently on 5.11.1123 he filed Ext. A application on which the Court passed the following order:-"The petitioner is allowed to withdraw the petition". Ext.1 application was thus withdrawn on 25.11.1123. It is however argued that the petition to withdraw Ext.1 application or the withdrawal of the same with the permission of Court can have hardly any bearing on the consideration of the question of the maintainability of the present application before the Commissioner, for, according to the appellant by the filing of Ext.1 application a suit for damages in respect of injury has been instituted by the workman against the employer and when once it has been done, the workman has no remedy thereafter under the Act under any circumstances whatsoever. The important question for decision therefore is whether the filing of Ext.1 application for leave to sue in forma pauperis constitutes the institution of a suit for damages in a Civil Court in respect of the injury against the employer as contemplated in sub-s. 5 of S.3. 5. It seems to us that the matter has to be examined from the stand-point of the express provisions of the Code of Civil Procedure (Travancore) regarding the institution of suits in forma pauperis. 6. Obviously the arguments of the learned Counsel for the appellant overlook the scheme of the provisions of 0.33 of the Code of Civil Procedure (Travancore) in respect of suits by paupers. 0.33, R.1 provides that subject to the provision contained in the Order a suit may be instituted by a pauper. R.2 prescribes the particulars that shall contain in an application for permission to sue in forma pauperis. R.3 deals with the mode of presentation of the application. R.4 deals with the examination of applicant. R.5 prescribes the conditions under which an application to sue in forma pauperis may be rejected even before notice. R.6 prescribes the mode regarding the issue of notice when the court sees no reason to reject the application and the fixing the date of hearing and receiving evidence of applicant's pauperism. R.7 prescribes the procedure at hearing. R.5 prescribes the conditions under which an application to sue in forma pauperis may be rejected even before notice. R.6 prescribes the mode regarding the issue of notice when the court sees no reason to reject the application and the fixing the date of hearing and receiving evidence of applicant's pauperism. R.7 prescribes the procedure at hearing. Sub-r. 3 of R.7 provides that "the court shall then either allow or refuse the application to sue as a pauper or direct the application to be filed as a plaint on the applicant paying the requisite court fee within such time as the court may allow". R. 8 provides that "where the application is granted it shall be numbered and registered and shall be deemed as the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay court fee". Thus the application though it contains as enjoined by the provisions of R.2 of 0.33, the particulars required in regard to plaints in suits and is also signed and verified in the manner prescribed for the verification and signing of pleadings, continues to be but an application for permission to sue as a pauper until it passed through the various stages and is either granted or rejected under sub-r. 3 of R.7 of 0.33 or until under the same sub-rule the court directs that the application be filed as a plaint on the applicant paying the requisite court fee within the time allowed by court. When the application is granted by virtue of the provisions of R. 8, it is deemed to be the plaint in the suit. Thus when the application is either granted or is ordered to be filed as a plaint on the applicant paying the requisite court fee within such times as the court may allow, it becomes converted by the operation of law into a suit; not that the application was in itself a suit from its incaption. No doubt when by operation of law, the application to sue in forma pauperis becomes converted into a suit the suit is deemed to have been filed not on the date when the application to sue in forma pauperis becomes converted into the suit but from the date on which the application was filed. No doubt when by operation of law, the application to sue in forma pauperis becomes converted into a suit the suit is deemed to have been filed not on the date when the application to sue in forma pauperis becomes converted into the suit but from the date on which the application was filed. This is so by virtue of the provisions of the Limitation Act. (See S.3 of Act VI of 1100). 7. From the scheme of the provisions in the Civil Procedure Code relating to suits by paupers, it is therefore apparent that the application to sue in forma pauperis can be deemed to be a plaint in the suit only when it is granted or when it is directed by the order of court that the application be filed as a plaint on the applicant paying the requisite court fee within such time as the court may allow. Until then in the eye of law no suit could be deemed to have been duly instituted. It is also clear from proviso 6 to S.3 of the Workmen's Compensation Act that the workman should have instituted in a Civil Court a suit for damages in respect of the injury against the employer before he could be denied the right to compensation under the Workmen's Compensation Act. 8. The Privy Council decision in Stuart Skinner alias Nawab Mirza v. William Orde (2 All. 241) relied on by the appellant does not go counter to the above view. That was a case which was not covered by the then existing provisions of the Civil Procedure Code in regard to pauper suits. The case before their Lordships of the Privy Council was one where prior to the application being granted or refused and while the question was still under investigation, the plaintiff was permitted to convert the matter into a regular suit by payment of the requisite court fee. The question that arose for decision was as to whether the claim of the appellant, who had originally applied for leave to sue in forma pauperis, but had afterwards paid the institution fee was barred by limitation. It was held that when the application had been converted into a plaint by the payment of the necessary court fee for purposes of limitation of suit must be deemed to have been instituted when the application was originally filed. 9. It was held that when the application had been converted into a plaint by the payment of the necessary court fee for purposes of limitation of suit must be deemed to have been instituted when the application was originally filed. 9. The learned Advocate for the appellant on the authority of AIR 1947 Mad. 405 and some other decisions contended that the application to sue in forma pauperis is a composite document, a plaint coupled with a prayer to allow to sue without payment of court fee and that in this sense the suit should be deemed to have been filed with the institution of the application for permission to sue in forma pauperis. The learned Advocate for the respondent however relies on the Full Bench decision of the Allahabad High Court reported in Chunna Mal v. Bhagwat (AIR 1936 All. 584) and other decisions that take a contrary view. It may be mentioned here that while sub-r. 3 of 0.33, R.7 of the Code of Civil Procedure 1908 (Indian Act V of 1908) provides only that the court shall either allow or refuse to allow the applicant to sue as a pauper the corresponding provision in the Travancore Civil Procedure Code further authorises the court to direct that the application be filed as a plaint on the applicant paying the requisite court fee within such time as the court may allow. However in the view that we take on the question before us on the basis of the express provisions of the Code of Civil Procedure (Travancore) regarding applications to sue in forma pauperis, it seems to us to be unnecessary for the purposes of this case to go into the controversy as to whether an application seeking leave to sue in forma pauperis is a composite document or not, for, whatever be the characteristics of that application we are clearly of opinion that mere filing of an application to sue in forma pauperis is not sufficient to constitute the institution of a suit in a Civil Court within the meaning of S. 3, proviso 5 of the Workmen's Compensation Act and that until the application has been granted under 0.33, R.7 and registered and numbered as a suit under R. 8 of 0.33, or until the application has been ordered to be filed as a plaint as enjoined under 0.33, R. 7, sub-r. 3 the suit cannot be deemed to have been duly instituted. In this case Ext.1 application cannot therefore operate as a bar to the workman's rights for claiming compensation under the Workmen's Compensation Act. The contention of the appellant in regard to this matter is therefore groundless. 10. Next, it is contended that the Commissioner is wrong in having entertained and decided the claim long after one year as provided in S.10 (1) of the Workmen's Compensation Act and that the view of the Commissioner that there is sufficient cause to entertain and decide the claim is erroneous. The accident in question occurred on 15.5.1122. The application for compensation was filed before the Commissioner only on 1.10.1123, ie., admittedly long after one year from the date of accident. It is contended that the application is clearly barred under sub-s.1 of S.10 and that there is not sufficient cause to admit and entertain the application under the third proviso of the sub-s.1 of S.10 of the Workmen's Compensation Act. It is contended that the application is clearly barred under sub-s.1 of S.10 and that there is not sufficient cause to admit and entertain the application under the third proviso of the sub-s.1 of S.10 of the Workmen's Compensation Act. S.10 (1) provides: "No claim for compensation shall be entertained by the commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within one year of the occurrence of the accident, or in case of death within one year from the date of death." Third proviso to S.10 (1) reads: "Provided, further, that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause." 11. The words of the proviso clearly indicate that it is for the Commissioner to be satisfied and if he is satisfied that there is sufficient cause he can entertain and decide any claim to compensation even if it has not been preferred in due time as provided in sub-s.1 of S. 10. "However, the question whether there was any evidence before the Commissioner on the basis of which he could be properly satisfied is undoubtedly a question of law on which this Court can interfere." (Vide A.I.R. 1941 Born. 296). 12. Immediately after the accident on 15.5.1122 the workman was taken to the Government Hospital at Kozhencherry where his left leg was amputated and he was treated for some time. Soon after his discharge from the Hospital at Kozhencherry the workman proceeded to Bombay for further treatment and he returned from Bombay after treatment only by the end of January 1948 on 15.6.1123 according to the appellant. On his return from Bombay he approached the Managing Director of the plaintiff-company seeking compensation for the injury sustained by him and the Managing Director asked the workman to wait till the Board of Directors of the Company met on 3.7.1123. The Board of Directors decided on 3.7.1123 that no compensation could be given to the workman and the Company intimated its decision to the workman. The Board of Directors decided on 3.7.1123 that no compensation could be given to the workman and the Company intimated its decision to the workman. These facts are clearly borne out by the evidence in the case and they are not challenged. Immediately after the communication of the decision of the Board meeting, the workman on 11.7.1123 issued a registered notice to the Company and on 2.8.1123 filed Ext.1 application to sue in forma pauperis. This application was later on withdrawn and the application before the Commissioner for compensation was filed on 1.10.1123. In these circumstances it cannot be seriously contended that the workman had not sufficient cause in not filing the application before the Commissioner at any rate till the decision of the Board on 3.7.1123. This date takes the matter beyond one year from the date of occurrence of the accident. It is however contended that there is no justification for the delay in filing the application before the Commissioner even after the decision of the Board was communicated to the workman. The filing of or the pendency of the application to sue in forma pauperis is, it is argued, no justification for the delay in filing the application before the Commissioner and it is urged that in any event there is no justification for holding that there is sufficient cause for the delay even after the date of intimation of the decision of the Board of Directors of the Company. 13. This takes us to a question of some importance. It seems to us that the arguments of the learned counsel for the appellant proceeds on an imperfect understanding of the real question that has to be decided by the Commissioner in a matter like this. Under the proviso to S.10 (1) of the Workmen's Compensation Act the question that the Commissioner has to decide is whether the workman had sufficient cause in not preferring the claim in due time as provided in sub-s. 1. If the Commissioner is satisfied that there is sufficient cause for not filing the application within one year then the bar created under the statute is altogether removed and the question of any further delay does not arise. 14. If the Commissioner is satisfied that there is sufficient cause for not filing the application within one year then the bar created under the statute is altogether removed and the question of any further delay does not arise. 14. The provisions in the Workmen's Compensation Act XIII of 1114 (Travancore) regarding this matter is somewhat similar to the provisions of S. 2 of English Workmen's Compensation Act of 1905 which was replaced by S.14 of English Workmen's Compensation Act of 1925. An almost identical question came up for consideration in a case reported in Lingley v. Thomas Fifth and Sons, Limited (1921) IKB 655. S.2 of the English Act of 1906 provides that "proceedings for the recovery under this Act of Compensation for an injury shall not be maintainable 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 provided always that (b) the failure to make a claim within the period above specified shall not be a 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". 15. Lord Sterndale, M.R. in the course of his judgment at page 661 said: "I cannot see how that proviso deals with anything at all, except the period of six months. It may be that it would have been common sense for the Legislature to have gone further and to have provided something different, but it seems to me that the argument for the appellants in this case involves this, that you must read the proviso as meaning that a claim must be made within six months or, that if there is a reasonable excuse for not making it within six months, then it must be made within a reasonable time after the six months. I can find no such provision in the Act 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". At page 665, Lord Warrington, L.J. said: "The Act provides that proceedings for the recovery of compensation shall not be maintainable unless the claim for compensation is made within six months. Therefore so far as there is a bar to the proceedings if the claim, whatever is meant by the claim, is not made within six months after the occurrence of this accident. That is subject to the proviso, that a failure to make the claim within six months shall not be a bar to the maintenance of such proceedings if it be found that the failure was caused by mistake, absence from the United Kingdom, or other reasonable cause "But 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". 16. We may mention here that we do not think that the provisions of the Limitation Act (Travancore) apply to proceedings under the Workmen's Compensation Act (Travancore). 17. The provisions of S.10 of the Travancore Workmen's Compensation Act are the same as those contained in S.10 of the Indian Workmen's Compensation Act of 1923 as subsequently amended. A similar question arose under the Indian Workmen's Compensation Act in a case reported in A.I.R. 1938 Calcutta 348. In his Judgment His Lordship Derbyshire, C.J. following the decision in (1921) I.K.B. 655 said; "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". 18. 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". 18. We are in entire agreement with the above view. When there is sufficient cause for not bringing the application within one year as enjoined in sub-s.1 of S.10, there is nothing that will bar the workman in applying before the Commissioner as he has done in this case. The absence of any satisfactory explanation for any subsequent delay would not be a bar against the maintainability of his application before the Commissioner. 19. We may also say that the reasons for delay in filing the application even after receipt of notice from the appellant-company denying the workman's claim for compensation, stated by the workman before the Commissioner, have been accepted by the Commissioner and in the circumstances of this case we do not think we can say that they do not constitute "sufficient cause". 20. Viewed from any stand-point therefore, we think that the Commissioner was right in having entertained the petition after one year and we do not see any reason to interfere. No other points are urged in appeal. 21. The appeal therefore fails and is dismissed with costs. Appeal dismissed.