VIMAL Vs. ATTAR HUSSAIN

JUDGEMENT

(1.) THIS appeal under Section 30 of the Workmen's Compensation Act has been preferred by a slate pencil cutter, suffering from silicosis, whose claim for compensation has been dismissed by the Commissioner by his judgment dated 24.7.1984 passed in case No. 23 of 1984, solely on the technical ground that it was not maintainable.

(2.) THE Appellant filed his claim for compensation against the Respondent -employers, in whose slate pencil works he had been working for over ten years, immediately preceding the filing of his claim, which was resisted by the employer -Respondents on all conceivable grounds, tenable or untenable, permissible or impermissible, under the law.

(3.) COMING now to the merits of the case, the employer -Respondents have not chosen to enter the witness -box nor examined any witness to rebut the claimant -Appellant's evidence, as regards his employment with the Respondents, the sickness he suffered during the employment, the monthly salary of Rs. 400/ - drawn by him and his dependents his wife, his father, son and daughter aged three and eight years respectively, all these facts have been duly established. The Respondents have examined one Rameshchandra Mishra, Manager, E.S.I, at Ratlam solely with a view to prove that the Appellant's claim under the Workmen's Compensation Act was not maintainable thus the Appellant's evidence on other aspects of the matter has not been rebutted so much so the Respondents did not choose to enter the witness -box to state on oath that the claimant -Appellant was not at any point of time, in their employment and that he was not drawing a salary of Rs. 400/ - p.m. No record has been produced. It has been proved beyond doubt by medical evidence that the Appellant suffered from pneumoconiosis, which was attributable to his employment, in slate pencil works. 'Nodular opacities' were observed in X -ray Exh. P -2 which is an unfailing symptom of silicosis Dr. Purnashankar Bhatt, who was a specialist, posted at Government Medical Hospital, Mandsaur, was cross -examined at length but nothing material turned out. Exh. P -1 is the certificate given by the Medical Board, consisting of the Civil Surgeon, Mandsaur, Dr. Narolia, Dr. Solapurkar and the witness Dr. Bhatt. They were members of Silicosis Committee. Thus, the claimant has proved his employment as well as ailment. Except to support the technical objection, Respondents have adduced no evidence in rebuttal in spite of more than a dozen of opportunities sought and granted to them for the purpose. The first date for evidence of both the parties was fixed on 11.10.1982 and the Respondents had too many opportunities for adducing evidence, which they had so desired till 24.7.1984, but as the order -sheets disclose, they never sincerely meant to produce evidence, except to support their technical objection about the maintainability of the claim petition. They examined Rameshchandra Mishra, Manager, E.S.I. Corporation at Ratlam, who merely produced Exh. P -4 and its counterfoil Exh. D -1 which, as stated above, does not bear any endorsement, seal or signature of any of the officers or authority of the Corporation, nor has the witness Rameshchandra Mishra referred to any such signature, obtaining on exhibits P -4 and D -1. It is on the basis of this evidence that the Respondents support their objection that in view of Section 53 of the Employees' State Insurance Act, a claim petition under Workmen's Compensation Act is not maintainable.