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Himachal Pradesh High Court · body

2016 DIGILAW 2427 (HP)

United India Insurance Company v. Dhananjoy Dass

2016-11-17

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned award rendered by the learned Commissioner, Employees Compensation, Mandi, District Mandi, in Workmen Compensation Petition No. 40/2011 whereby on occurrence of demise of the son of the claimant during the course of his performing employment as a labourer under his employer respondents No. 2 and 3. he determined compensation vis.a.vis the claimant in the sum comprised therein. 2. This appeal was admitted on 7.12.2015 on the hereinfafter extracted substantial questions of law:- “1. Whether the claim petition filed beyond the prescribed limitation period of two years after death of deceased workman, Sh. Bapi Das on 27.09.2003, was time barred and thus, did not deserve to be entertained? 2. Whether amount of compensation to the tune of Rs.4,45,000/- awarded to the claimant is legal and justified as per provisions of the Employee's compensation Act or on the basis of proved income of deceased and his age the claimant is entitled only to an amount of Rs.2,85,124/- alongwith interest.” The learned counsel for the appellant has not concerted to repel the legality of the findings recorded by the learned Commissioner qua the demise of the deceased occurring during the course of his performing employment as a labourer under respondents No. 2 and 3. He also does not controvert the findings recorded by the learned Commissioner qua the claimant holding the capacity of a dependant of his deceased son. 3. Be that as it may, the substantial question of law occurring at Sr. No.1 stands enjoined to be adjudicated upon. The learned counsel appearing for the appellant has submitted qua with the demise of the son of the claimant occurring on 27.09.2003 whereas the apposite claim petition standing preferred on 29.10.2005 wherefrom he contends qua with the preferment of the apposite claim petition before the learned Commissioner occurring after more than two years elapsing since the demise of claimants' son renders attractable qua the claim petition the mandate of the provisions engrafted in Section 10 (1) of the Workmen's Compensation Act (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter, significantly when hence it evidently stood preferred therebefore beyond the statutorily prescribed period of limitation:- “10. Notice and claim:- (1) 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.” thereupon he canvasses qua the Commissioner standing statutorily barred to exercise jurisdiction upon the apposite claim petition reiteratedly when its preferment occurred after more than two years since the demise of a workman during the course of his performing employment under his employer. Apparently, the claim petition stood preferred by the claimant before the learned Commissioner with a minimal delay of one month occurring since elapse of the statutorily prescribed period of two years since the illfated demise of his son for thereupon rendering it to be maintainable. Apparently, the claim petition stood preferred by the claimant before the learned Commissioner with a minimal delay of one month occurring since elapse of the statutorily prescribed period of two years since the illfated demise of his son for thereupon rendering it to be maintainable. However, the rigour of the mandate of sub section (1) of Section 10 of the Act which stands extracted hereinabove stands relaxed by its proviso engrafted therein, which also stands extracted hereinafter “Provided that, where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease: Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work, the period of two years shall be counted from the day the workman gives notice of the disablement to his employer: Provided further that if a workman who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected: Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim (a) if the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or (b) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other Source at or about the time when it occurred: 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.” relevant proviso whereof embodies therein a diktat qua the learned Commissioner even when the apposite claim petition stands preferred before him beyond a period of two years since the illfated demise of a workman during the course of his performing employment under his employer, his yet holding jurisdiction to thereupon pronounce an adjudication on his demonstrably besides explicitly evincing satisfaction qua the sufficiency of cause which precluded the claimant to file it therebefore within the statutorily prescribed period of limitation engrafted in sub section (1) of Section 10 of the Act. He contends qua the mandate of the relevant proviso to sub section (1) of Section 10 of the Act for hence its standing attracted hereat for thereupon rendering maintainable a claim petition preferred beyond the statutorily prescribed period of limitation obviously does not empower the learned Commissioner to draw satisfaction qua the good and sufficient cause which precluded besides deterred the claimant to within time file his apposite claim petition before him unless an apposite motion in consonance with its mandate stands made therebefore by the claimant. He proceeds to argue qua with the relevant record omitting to make any disclosures qua the learned Commissioner within the ambit of the relevant proviso to sub section (1) of Section 10 of the Act explicitly drawing satisfaction qua the sufficiency of cause which deterred the claimant to file a claim petition before him, renders it to be unworkable vis.a.vis the claimant. He hence contends qua the pronouncement recorded by the learned Commissioner being jurisdictionally nonest. The aforesaid submission made by the learned counsel for the appellant has been made on a stricto sensu interpretation by him of the ambit besides the amplitude of the apposite proviso (1) of Section 10 of the Act. The learned counsel for the appellant has remained oblivious to the factum of a minimal delay of only one month occurring on elapsing of the statutorily mandated period of two years since the ill fated demise of the son of the claimant upto the stage whereat the apposite claim petition stood preferred before the learned Commissioner. He also remained unmindful qua the factum of the aforesaid contention standing not raised by the appellant herein while instituting a reply to the claim petition preferred by the claimant before the learned Commissioner. Consequently, no apposite issue struck thereon by the learned Commissioner also no evidence thereon stood adduced therebefore. Even though the objection raised herebefore by the learned counsel for the appellant stands anvilled upon evident infraction of statutory provisions also any omission (s) qua the facets aforesaid would not beget any inference of thereupon the award recorded by the learned Commissioner not suffering from any vice of jurisdictional statutory disempowerment. Even though the objection raised herebefore by the learned counsel for the appellant stands anvilled upon evident infraction of statutory provisions also any omission (s) qua the facets aforesaid would not beget any inference of thereupon the award recorded by the learned Commissioner not suffering from any vice of jurisdictional statutory disempowerment. However, the effect of omissions aforesaid when coalesced with the learned Commissioner ultimately recording his pronouncement upon the claim petition does convey qua his impliedly drawing satisfaction qua the sufficiency of good cause which precluded the claimant to within the statutorily mandated period of time prefer the apposite claim petition before him. The play of the apposite proviso to sub section (1) of Section 10 of the Act is not enjoined to be inhibited by rigidly insisting upon the learned Commissioner to in terms thereof explicitly record the sufficiency of cause which deterred or precluded the claimant to within the statutorily mandated period of time prefer the apposite claim petition before him. Contrarily the workability of the proviso would remain alive given the factum of the impact of the aforesaid omissions construed in coagulation with his ultimately pronouncing an award upon it hence facilitating impetus to a deduction qua thereupon the learned Commissioner impliedly drawing satisfaction qua good and sufficient cause which deterred the claimant to within the statutorily prescribed time file his apposite claim petition before him. As aforesated hence it would be insagacious to insist upon the learned Commissioner to within the ambit of the relevant proviso explicitly make a pronouncement qua its provision standing attracted qua the claim significantly when hence it would denude the salutary purpose of the Act also would ultimately work hardship to the dependents of the deceased workman especially when he was performing employment under his employer as an unskilled labourer besides with the claimant likewise being a resident of Bengal situated at a location remotely distanced from the place of work whereat his deceased son was performing employment, also given the semi illiteracy of his deceased son besides of the claimant, any insistence with rigour upon him qua his remaining alive to the statutory mandate of sub section (1) of Section 10 of the Act would rather aggravate his hardship. For mitigating the aforesaid hardships besides for carrying forward the salutary purpose of the Act necessarily when the aforesaid discussion forecloses an inference qua the learned Commissioner hence impliedly drawing satisfaction qua the good and sufficient cause which deterred the claimant to within the statutorily prescribed period of time prefer his claim petition before him. Consequently, the submission made by the learned counsel for the appellant qua the learned Commissioner standing jurisdictionally disempowered to record his award given the claim petition standing preferred before him beyond the period of limitation prescribed under sub section (1) of Section 10 is liable to be discountenanced. Accordingly, the substantial question of law No.1 is answered in favour of the claimant. 4. The learned counsel for the appellant has submitted with much vigour qua with the employer of the deceased workman making a disclosure in Mark-E6 qua the deceased workman from his relevant employment under him drawing per mensum wages quantified at Rs.2591.72, constituted the sum aforesaid to be construable to be the relevant per mensum quantum of monthly wages drawn by the deceased workman from his employment under his employer whereas the learned Commissioner anvilling his relevant findings merely on an affidavit sworn by the claimant holding therewithin reflections of his deceased son drawing per mensum wages quantified at Rs.5,000/- whereto he applied the relevant statutory principles, has thereupon committed an inherent error. Apparently Mark E6 submitted by the employer of the deceased son of the claimant holds reflections of the deceased from his relevant employment drawing per mensum wages quantified at Rs.2591.72. The disclosure aforesaid occurring therewithin constitutes formidable evidence qua the relevant facet significantly when the apposite disclosure occurring therein has emanated from the employer of the deceased workman who obviously held the best knowledge to pronounce qua the relevant fact. The relevant sole testimony of the claimant even if it holds any vigour its sinew stands benumbed by Ext.E6 also by the claimant in his cross-examination acquiescing to a suggestion put to him by the learned counsel for the appellant while holding him to cross-examination qua his holding no knowledge qua the wages per mensum drawn by his deceased son from his relevant employment under his employer. Consequently, the reliance placed qua the relevant fact by the learned Commissioner upon the sole testimony of PW-1 is grossly inapt it being wholly surmisal whereas he was enjoined to mete reverence to the apposite reflections occurring in Mark E6. The learned Commissioner has hence committed a gross illegality. The sequel of the above discussion is qua in the manner prescribed by the apposite provisions of the Workmen's Compensation Act embedded in Section 4 (1) (a) provision whereof stands extracted hereinafter: “4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-- (a) where death results from the injury An amount equal to fifty percent of the monthly wages of the deceased workman multiplied by the relevant factor,” After meteing 50% deduction to the sum of Rs.2591.72 i.e. Rs.1,295.86/- whereupon on application thereto of the relevant factor which stands correctly applied by the learned Commissioner, the amount of compensation which is to be determined to be payable to the claimant stands comprised in a sum Rs.222.71x1,295.86= 2,88,600.98/-. Accordingly, the substantial question of law No.2 answered in favour of the appellant. The appeal is partly allowed. The award of the learned Commissioner is modified to the extant that the respondents/claimants 1 and 4 herein shall be entitled to compensation comprised in a sum of Rs. 2,88,600.98/-. alongwith interest @ 12 per cent per annum to be levied thereon since the elapsing of one month after the accident. Statutory penalty for omission of the employer to beget satiation of the mandate of Section 4-A is quantified at Rs.20,000/- liability whereof stands fastened upon the employers i.e. respondents No. 2 and 3 herein. The compensation amount shall be equally apportioned amongst the claimants/ respondents No. 1 and 4 herein.