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2007 DIGILAW 132 (ALL)

SURAJ PAL v. VINOD KUMAR BAJPAI

2007-01-16

S.N.SRIVASTAVA

body2007
JUDGMENT Honble S.N. Srivastava, J.—By means of this writ petition, the petitioner has canvassed the validity of order-dated 10.3.2003 passed by the Assistant Labour Commissioner Fatehpur whereby the application of the petitioner made for payment under the Workmen Compensation Act, 1923 was rejected on the ground that cause of action arose after 19.3.1991 while the application was filed on 27.4.1998 i.e. after a lapse of seven years that too without any accompanying application for condonation of delay. In the ultimate analysis, it would appear, the objection of the Opposite Party was nodded in acceptance holding that the application was barred by time. 2. Learned Counsel for the petitioner canvassed that from the materials on record, it brooks no dispute that Dhruv Narain alias Raju was last seen on 9.3.1991 and eversince then his whereabouts were not known and in consequence his civil death could be presumed after elapse of seven years and further that after elapse of seven years, the application was duly filed which was within limitation period and therefore, the submission further proceeds, the application for compensation under the Workmen Compensation Act, 1923 was within limitation and the impugned order deserves to be quashed attended with further submission that the matter be relegated for being decided in accordance with law. Per contra, Sri S.C. Srivastava, lend prop to the order urging that the order was rightly passed. 3. I have heard learned Counsel for the parties and also scanned the materials and arguments advanced across the bar. 4. From a glance through the provisions of Section 10 of the Workmen Compensation Act, 1923, it is evident that claims must be preferred within two years of the occurrence of the accident or in case of death. Section 10 (1) of the Act being germane to the controversy is quoted below : “No claim for compensation shall be entertained by a 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 two years of the occurrence of the accident or, in case of death, within two years from the date of death.” 5. According to the averments made in the application for compensation, it is clear that Dhruv Narain who was in the employment of respondent No. 1 as Driver, had commenced journey with goods laden truck from Kanpur for Nagpur, thereafter, it is further evident from the record, he proceeded to Patna and from Patna, he proceeded to Jharia (Bihar) where he was last seen on 19.3.1991. In this connection, Section 108 of the Indian Evidence Act may also be referred to which envisages that where a person has not heard of for seven years, by those who would have naturally heard of him if he had been alive, civil death shall be presumed. In this connection, law is well enunciated and there being no dispute that application was filed after expiry of seven years, the same is apt to be considered to have been filed within the period of limitation and cause of action for filing such application arises after seven years. 6. In the above perspective, considering the materials on record and regard being had to relevant law as discussed above, it brooks no dispute that civil death shall be presumed after seven years of the date of last seen. The presumption in the facts and circumstances of the present case, would accrue on 19.3.1998. According to the finding recorded by Assistant Labour Commissioner Fatehpur, the application was presented on 27.4.1998. Considering the provisions embodied in Section 10 of the Workmen Compensation Act, and also Section 108 of the Indian Limitation Act, the application made in this regard cannot be said to be beyond the period of limitation from the death and in consequence, no question arises requiring filing of an application seeking condonation of delay. In this perspective, the application was filed within the time and was rightly presented on 19.4.1998 in accordance with law. In this view of the matter, the impugned order refusing to decide the application under the Workmen Compensation Act, 1923 on merits suffers from the error of law apparent on the face of the record and is liable to be quashed. 7. In the result, the writ petition succeeds and is allowed. In this view of the matter, the impugned order refusing to decide the application under the Workmen Compensation Act, 1923 on merits suffers from the error of law apparent on the face of the record and is liable to be quashed. 7. In the result, the writ petition succeeds and is allowed. The impugned order dated 10.3.2003 passed by Assistant Labour Commissioner Fatehpur is quashed and the matter is relegated to the Labour Commissioner Fatehpur to decide the claim of the petitioner in accordance with law as expeditiously as possible not exceeding six months after affording opportunity of hearing to the parties concerned. ————