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2012 DIGILAW 802 (KAR)

M. C. Annappa v. Salvadar John Pinto

2012-09-22

ASHOK B.HINCHIGERI

body2012
Judgment Ashok B. Hinchigeri, J. 1. This appeal is directed against the Order, dated 23.08.2006 passed by the Labour Officer and the Commissioner for Workmen's Compensation, Uttara Kannada District, Karwar in WCA: SR-88/2000. The facts of the case in brief are that the respondent claims that he was working in the Government Nursery on 10.11.1995. The appellants asked him to climb the tree and fell its branches. In the course of cutting its branches, he fell down and suffered multiple injuries of grievous nature. On his filing the claim petition, the Commissioner for Workmen's Compensation awarded a sum of Rs. 2,08,457/- with interest at the rate of 12% thereon. 2. Aggrieved by the aforesaid order, this appeal is filed by the concerned Government Officers. Sri P.H. Gotkhindi, the Learned HCGP appearing for the appellants submits that there is a delay of five years in filing this appeal; no good ground exists for the condonation of the delay. Worst of all, no orders are passed on the application for the condonation of delay. The Commissioner has proceeded to dispose of the claim petition on merits. The Commissioner's impugned order is therefore without jurisdiction, so submits Sri Gotkhindi. 3. The Learned Government Pleader further submits that the claim petition was dismissed for default on 14.09.2004. Thereafter, the appellants had no further notice of its restoration. He submits that the Order Sheet, dated 05.07.2006 maintained in the proceedings before the Commissioner does not even state whether the appellants' side was present or absent. Similarly, nothing is said about the presence or absence of the appellants' side on 22.08.2006 to which date the matter was posted for the appellants' evidence. The arguments were heard on 22.08.2006. On the very next day the impugned order is passed. 4. The Learned Government Pleader submits that no document whatsoever is produced to show that there is master-servant relationship between the appellants and the respondent. He also denies that the accident has taken place in the course of employment. He submits that the respondent may have gone to the Government Nursery for his own reasons and certainly without any instructions from the appellants. 5. Sri S.S. Bhute, the Learned Counsel for the respondent submits that the affidavit filed in support of the I.A. for the condonation of delay of five years cogently and satisfactory explains the delay. He submits that the respondent may have gone to the Government Nursery for his own reasons and certainly without any instructions from the appellants. 5. Sri S.S. Bhute, the Learned Counsel for the respondent submits that the affidavit filed in support of the I.A. for the condonation of delay of five years cogently and satisfactory explains the delay. He submits that the appellants were assuring the respondent that the matter would be settled and that he will be paid the compensation. Believing and acting on their assurance, the respondent did not file the claim petition. The Learned Counsel submits that yet another reason for the delayed filing of the claim petition is that the respondent was bed-ridden due to the injuries inflicted by the fall from the tree. He submits that the appellants have not filed any objections to the delay condonation application. They have filed the objections only to the main matter. He also brings to my notice that the point of delay is being raised for the first time by the appellants in this appeal. The appellants have not objected to the delayed filing of the claim petition in the written statement also. 6. The Learned Counsel for the respondent further submits that, as deposed by the doctor (P.W. 2), the permanent disability is cent percent. The respondent's both limbs have become lifeless. He is down with paraplegia. That the respondent could not even stand up or sit down is noticed by the Commissioner, as reflected in the order sheet. 7. The Learned Counsel for the respondent submits that the claim petition was filed on 06.12.2000. The order sheet in the lower Court records starts from 16.01.2001. He would therefore contend that the application for the condonation of delay may have been allowed by a separate order prior to 16.01.2001. 8. The questions that fall for my consideration are: (i) Whether the long delay of five years is cogently and satisfactorily explained by the respondent? (ii) Whether the delay is condoned by the Commissioner? (iii) Whether the impugned order is passed in violation of the principles of natural justice? (iv) Whether the issues of employer-employee relationship and of the accident taking place in the course of employment can be re-appraised? (v) From what date the respondent is entitled to interest? 9. (ii) Whether the delay is condoned by the Commissioner? (iii) Whether the impugned order is passed in violation of the principles of natural justice? (iv) Whether the issues of employer-employee relationship and of the accident taking place in the course of employment can be re-appraised? (v) From what date the respondent is entitled to interest? 9. What weighs with the Court in considering the I.A. for the condonation of delay is not the length or duration of the delay, but the existence of the sufficiency of causes for the condonation of delay. My perusal of the affidavit filed in support of the I.A. for the condonation of delay reveals two extenuating circumstances: (a) The respondent was bed-ridden due to the prolonged illness caused by the injuries he sustained on account of the fall from the tree, (b) The appellants had aroused his optimism that the matter would be settled. 10. In the instant case, there is no presumption that the delay has been occasioned deliberately on account of culpable negligence of the respondent or that there has been want of bonafides. The Government and its officers should try to avoid resisting a case on the technical plea of limitation; avoidance of an order on merits may result in injustice. 11. The Employees Compensation Act, 1923 is a social welfare Legislation. The Division Bench judgment of this Court in the case of The Commissioner, City Municipal Council vs. Nagubai and Others ILR 2010 Kar 1623, upheld the Commissioner's order condoning the delay of nearly 2½ years by denying the interest during the period of delay. 12. Total physical disability and assurance of the settlement, in my considered view, constitute valid grounds for the condonation of five years' delay. Therefore, I unhesitatingly answer question No. 1 in favour of the workman. 13. The interconnected question that I am called upon to answer is whether the Commissioner has indeed condoned the delay. I am afraid this question cannot be answered decisively. Though the claim petition is admittedly filed on 06.12.2000, the order sheet in the lower Court records starts only from 16.01.2001. The lower Court records contain the postal envelops in which the notices were sent to the appellants. They bear the date 18.12.2000. The possibility of the Commissioner allowing the I.A. for the condonation of delay by a separate order and before 16.01.2001 cannot be ruled out. The lower Court records contain the postal envelops in which the notices were sent to the appellants. They bear the date 18.12.2000. The possibility of the Commissioner allowing the I.A. for the condonation of delay by a separate order and before 16.01.2001 cannot be ruled out. The appellants have not filed the objections to the delay condonation application. It is also to be noted in this context that there is no specific averment in the appeal memorandum that the Commissioner proceeded to pass the order on merits without passing the order on the delay condonation application. The appeal memorandum only speaks of the long delay of five years in filing the claim petition. What can be said with certainty is that the Commissioner was satisfied that there was sufficient reasons for the condonation of delay. Once the reasons for delay are there on record, it can be condoned. 14. Taking all these factors into pragmatic consideration and applying the Latin maxim "actus curiae neminem gravabit" (an act of the Court shall prejudice no one), I hold that the workman cannot be subjected to any suffering due to the Commissioner's mistake, if any. Courts should pass an order to ensure that the interests of none of the parties to the litigation are harmed. It is the duty of the Court to see that no one suffers by its order. The second question is answered to the effect that the Commissioner has condoned the delay, either expressly or impliedly, as the appellants had raised no objections whatsoever to the delay in filing the claim petition. 15. The third question of whether the impugned order is passed in violation of the principles of natural justice is formulated in the wake of the appellants' grievance that they had no notice of the proceedings after the dismissal of the claim petition on 14.09.2004. This grievance appears to be artificial, because the respondent has taken out the notice by way of paper publication after the dismissal of the claim petition for default. The notice came to be published in 'Karavali Munjavu' on 07.01.2005. 16. Equally untenable is the submission made by Sri P.H. Gotkhindi that the Commissioner has not given the appellants an opportunity to cross-examine and adduce their evidence. The Order Sheet, dated 05.07.2006 and 22.08.2006 clearly shows that the opportunities were indeed given to the appellants. The notice came to be published in 'Karavali Munjavu' on 07.01.2005. 16. Equally untenable is the submission made by Sri P.H. Gotkhindi that the Commissioner has not given the appellants an opportunity to cross-examine and adduce their evidence. The Order Sheet, dated 05.07.2006 and 22.08.2006 clearly shows that the opportunities were indeed given to the appellants. It is not stated in the appeal memorandum that the appellants were present on the said days and that they were not permitted to cross-examine and/or to adduce their evidence. Merely not recording the absence or presence of a party by the Commissioner cannot entail in putting back the clock. On such slender grounds, I do not propose to quash the impugned order. The Hon'ble Supreme Court has held in the case of Chairman, Board of Mining Examination and Chief Inspector Mines and Another vs. Ramjee AIR 1977 SC 965 that natural justice is not an unruly horse, no lurking land-mine nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and fundamentals of such processual property being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. The third question is answered in the negative as I do not see any violation of the principles of natural justice in the passing of the impugned order. 17. The questions of employer-employee relationship and the accident taking place in the course of employment are all the questions of facts, which cannot be re-agitated in the appeal, unless it is shown that the findings thereon are delivered without there being any evidence. The Appellate Court can interfere in a finding of fact arrived at by the Commissioner, if it is perverse; if no reasonable person could arrive at such a finding on the basis of evidence. If two views are possible on evidence, the Appellate Court would not be justified to interfere with the finding of the Commissioner. The Appellate Court can interfere in appeal only on questions of law and when the findings are against the provisions of law or dehors the pleadings or evidence. 18. The findings delivered by the Commissioner cannot be tested on the touchstone of degree of proof as required in more formal proceedings. The Appellate Court can interfere in appeal only on questions of law and when the findings are against the provisions of law or dehors the pleadings or evidence. 18. The findings delivered by the Commissioner cannot be tested on the touchstone of degree of proof as required in more formal proceedings. In taking this view, I am fortified by this Court's decision in the case of United India Insurance Co., Ltd., vs. Prakash Shankar Gurav and Another 2006 ACJ 747 . The relevant portions of the said decision are extracted hereinbelow: 3............ The appreciation of the material on record by the Commissioner in a summary proceedings which is contemplated under the Act could not be tested on the touch-stone of degree of proof required in more formal proceedings requiring an in-depth examination of the details sought to be advanced in order to evidence a fraudulent claim. 4. In the instant case, at best the appellant would be demonstrating that the facts asserted are doubtful, but it would not advance the case of the appellant that there was no accident at all and that the claimant could not claim as a cleaner in the vehicle by virtue of the fact that he was related to the owner, respondent No. 2. Therefore, in my opinion, the questions said to be urged as substantial questions of law relate merely to questions of fact which have been found in favour of the claimant....................... 19. It is profitable to refer to the Hon'ble Supreme Court in the case of Maghar Singh vs. Jashwant Singh (1998) 9 SCC 134 . The Hon'ble Supreme Court has this to say in para 4: We have carefully examined the evidence in this connection and we are satisfied beyond any manner of doubt that at the relevant point of time when the accident occurred in which the appellant lost both his hands above the wrists he was operating the "toka" machine belonging to the respondent. That is not a matter in controversy. There is also the evidence showing the respondent having taken the appellant to the hospital after he sustained the injuries which is a factor which could not have been overlooked. There is also no reason to believe that the appellant would wrongly point a finger at the respondent as his employer. That is not a matter in controversy. There is also the evidence showing the respondent having taken the appellant to the hospital after he sustained the injuries which is a factor which could not have been overlooked. There is also no reason to believe that the appellant would wrongly point a finger at the respondent as his employer. When seasonal work of this type is taken on farms it is not unusual for the employer not to issue a letter of appointment or make entries in the register regarding payment of salary to avoid certain legal consequences. We have, therefore, no difficulty in concluding that the appellant's contention that he was employed by the respondent and that he suffered the injury in question while operating the "toka" machine of the respondent in the course of employment need not be doubted. 20. In the instant case, the appellants themselves have virtually stayed away from the proceedings after filing the written statement. They have not cross-examined and then have not entered the witness box. They cannot be content saying in the written statement that the respondent is not the workman under them or that they had not instructed him to climb the tree and cut the branches. Their written statement does not say that the respondent had entered the Government Nursery unauthorizedly to steal the Nursery products or that he has been a tresspasser in the Nursery. Making blanket and vague averments would not lead the Government anywhere. 21. Not finding any perversity in the appreciation of evidence by the Commissioner in arriving at the findings that the employer-employee relationship exists between the appellants and the respondent and that the accident has taken place in the course of employment, I hold that the re-appraisal of these two issues is not warranted. Question No. 4 is answered accordingly. The Commissioner has given valid reasons for accepting the evidence led by the claimant. 22. Now coming to the last question, I notice that the Commissioner, in para 10 of his order, has held that the respondent is entitled to interest from 11.12.1995 (after the expiry of one month from the date of the accident). However, in the operative portion of the order, it is mentioned that the respondent is entitled to claim interest from 11.12.2005. Obviously, there appears to be a typographical error. In the operative portion, 2005' is mentioned in lieu of 1995'. However, in the operative portion of the order, it is mentioned that the respondent is entitled to claim interest from 11.12.2005. Obviously, there appears to be a typographical error. In the operative portion, 2005' is mentioned in lieu of 1995'. 23. The Division Bench of this Court in The Commissioner of City Municipal Council (supra) has approved of the Commissioner's order condoning the delay of nearly 2½ years by denying the interest during the period of delay. It is also the Court's anxiety that the Government should not be burdened with the interest for no fault or lapse on its part. To balance the interests of both the parties, I modify that part of the impugned order which grants interest from 11.12.1995. I hold that the interest is leviable only from the date of filing the claim petition on 06.12.2000 and not from any anterior date. 24. The contentions raised in this appeal do not help the appellants beyond fixing a posterior date from which the interest becomes payable. The Commissioner's order requires only one modification. That is, the interest on the compensation amount is made payable only from 06.12.2000, the date of filing the claim petition. The appeal is allowed but only to that extent, 25. The amounts deposited by the appellants are directed to be transferred to the Labour Officer and the Commissioner for Workmen's Compensation, Uttara Kannada, Karwar for being disbursed to the claimant in accordance with law. No order as to costs.