NARSAYYA ASHANNA Vs. TATA ROBINS FRAZER LTD

JUDGEMENT

(1.) THIS appeal is directed against the order dated February 10, 1982 passed by the commissioner, under the Workmen's Compensation Act at Nagpur, in W. C. A. No. 18 of 1978, dismissing the application filed by the appellant/worker, on the ground that it is time barred. Heard Shri Dharmadhikari, the learned Counsel for the appellant. None present for the respondent.

(2.) IT is not disputed that the appellant Narsayya Ashanna was working with the respondent -Tata Robins Frazer Limited, as Khalashi on monthly wages of Rs. 240/ -. On March 11, 1974, he met with an accident while he was in the employmentof respondent. He was admitted in the medical College and Hospital, Nagpur, by the respondent, for treatment and he was there till october, 1977. The appellant was under treatment from time to time and ultimately on October 14, 1977, Dr. Marwha, Professor of Surgery of the Government Medical College and Hospital, nagpur, issued a certificate, certifying him fit to resume duties and also to the effect that he has been disabled to the extent of 40 per cent. The applicant in his own evidence stated that his disability is total and absolute and is also permanent. He has stated that he is unable to stand even for half an hour. He has stated that he was working as a Khalashi and is required to do the manual work. Dr. Marwha has stated that the applicant may be able to do the duty of the watchman by sitting and has also stated that the applicant cannot stand even for half an hour. Keeping in view the evidence and the nature of the injury, the learned Commissioner opined that the disability shall have to be taken as a total disability of permanent nature. The appellant, therefore, informed the respondent, i. e. his employer, by an application dated October 19, 1977, to permit him to join his duties and also to settle his claim for compensation. However, by reply dated October 31, 1977, the respondent denied his liability to pay any compensation.

(3.) THE learned Commissioner has dismissed the application of the applicant on the ground of limitation. He has not filed the application within the prescribed period. So also he failed to explain the delay of four years during which he was undergoing treatment and also another period of four months from the date of issuance of fitness certificate dated October 14, 1977 by dr. Marwha, till the date of filing of the application, i. e. February 24, 1978. It is an admitted fact that the appellant had received a compound fractures of the left tibia and fibula bones. Dr. Marwha specifically stated that the applicant had a fracture in his left tibia and the injury was a compound one,' resulted in a disability of the permanent nature. The appellant was first operated in the year 1974 and again in the year 1976 and lastly, he was under the treatment till October 24, 1977. On behalf of the respondent, a reliance was placed on a case Sitaram Ramcharan and ors. v. M. N. Nagrashana, Authority under the Payment of Wages Act for Ahmedabad Area, ahmedabad and Ors. AIR 1960 SC. 260 and submitted that the appeal is to be dismissed as the appellant has not shown sufficient cause for not making the application during the period of his first operation in 1974 and the second operation in the year 1976. In the case referred (supra)Lordships of the Supreme Court observed as under: