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2004 DIGILAW 1334 (AP)

ADDALA PRABHAVATHI v. M. N. V. S. MURALI KRISHNA

2004-11-09

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE claimants in w. c. case No. mp. l of 2001, filed under Section 10 of the Workmen s Compensation Act, 1923 (hereinafter referred to as "the act"), before the commissioner for workmen s compensation and assistant commissioner of labour, rajahmundry (for short "the commissioner"), are the appellants. Through his Order, dated 10. 8. 2001, the commissioner refused to entertain the claim of the appellants, on the ground that, it was presented beyond the prescribed period of limitation, and that there are no grounds to condone the delay. ( 2 ) THE appellants presented a claim before the commissioner on 28. 2. 2001, stating that Sri A. Bhaskara Rao, the husband of the first appellant, and father of appellants 2, 3 and 4, was employed as a driver with the first respondent on lorry bearing No. ahf 7155, and that on 15. 12. 1992, he left rajahmundry for Orissa state, with a load of onions. They alleged that ever since then, neither the lorry nor Sri Bhaskara Rao were traceable. The first respondent himself is said to have submitted a complaint to the police, who, in turn made an endorsement that the lorry and driver are not traceable. They pleaded that they were compelled to wait till the expiry of seven years, since they were not aware of the exact date and cause of death. The commissioner refused to entertain the claim on the ground that it is presented beyond two years, and that no valid explanation was offered for the delayed submission. ( 3 ) SRI M. Lakshmana Sarma, learned counsel for the appellants, submits that the appellants themselves, were not aware as to what happened to late bhaskara rao and that they had, invariably to wait for seven years, the period stipulated under Section 108 of the Evidence Act, to plead that he was deemed to be dead. He submits that the commissioner is conferred with ample power to condone delay in deserving cases, and the order under appeal does not accord with the spirit of the act. ( 4 ) SRI M. V. Suresh, learned counsel for the first respondent and Sri kota subba rao, learned counsel for the second respondent submit that though the act contemplates social security for the workmen, its provisions cannot be invoked, unless the claim falls within the scope of Section 10 of the act. ( 4 ) SRI M. V. Suresh, learned counsel for the first respondent and Sri kota subba rao, learned counsel for the second respondent submit that though the act contemplates social security for the workmen, its provisions cannot be invoked, unless the claim falls within the scope of Section 10 of the act. They submit that when two years is the limitation prescribed under Section 10 of the act, the power to condone the delay under the proviso, does not empower the commissioner to condone the delay of five years. According to them, such a course of action would defeat the very purpose of prescribing the limitation. ( 5 ) THIS appeal presents a typical situation. The appellants themselves were not aware as to what happened to Mr. Bhaskara rao. The fact that he was employed as a driver with the first respondent, and that he left rajahmundry, with a load of onions, on 15. 12. 1992, was not disputed by the owner of the vehicle, the first respondent. In fact, he submitted a complaint to the police about missing of the lorry and driver. After conducting necessary investigation, the police endorsed that the vehicle and driver are not traceable. ( 6 ) IT cannot be said, with certainty, even as on today, that Mr. Bhaskara rao died. The presumption provided for, under Section 108 of the Evidence Act, gets into play; and a statutory presumption has to be drawn that he is no more. The appellants were totally disabled from approaching the commissioner with any claim, before such statutory presumption started to operate. They could not state in their application, if presented earlier, as to whether Mr. bhaskara rao, was either injured or dead. Except the statutory presumption, there is no other material in their favour, to support their claim. ( 7 ) THE claim could certainly have been rejected, had Section 10 of the act did nothing more than, prescribing the limitation of two years for presentation of claims. The parliament contemplated the peculiar circumstances, wherein the parties may not be able to present their claim, within a period of two years. It was for this reason that the power to condone delay, was conferred upon the commissioner, under the second proviso to sub-Section (2) of Section 10 of the act. The parliament contemplated the peculiar circumstances, wherein the parties may not be able to present their claim, within a period of two years. It was for this reason that the power to condone delay, was conferred upon the commissioner, under the second proviso to sub-Section (2) of Section 10 of the act. Where the authority is conferred with the power to condone delay, an application cannot be rejected, on the ground that it was not presented within time. The area of consideration shifts to the existence or otherwise of sufficient cause. ( 8 ) AS observed earlier, the appellants were virtually disabled from presenting a claim before expiry of seven years from the date of disappearance of Mr. Bhaskara rao. The claim was presented soon after the expiry of that period. Therefore, it can be considered to be one of the fittest cases for invoking the second proviso to subsection (2) of Section 10 of the act. The purpose of the act is to provide social security to the workmen, in the event of injuries or death. A comparatively liberal approach needs to be had to the proceedings under it. Therefore, the delay ought to have been condoned. ( 9 ) FOR the foregoing reasons, the c. m. a is allowed, and the order under appeal is set-aside. The commissioner is directed to entertain the claim and dispose it of, by applying the factors, provided for under the act, as expeditiously as possible. There shall be no order as to costs.