T S ALAGAPPA MUDALIAR Vs. ALVRSTVEERAPPAN CHETTIAR

JUDGEMENT

(1.) On the 13 of August, 1933, the appellant met with a serious accident in the respondents mill, his leg being fractured by the falling of a beam on it. The employers (the respondents) assured him that they would look after him, pay his expenses while he was in the hospital, maintain him, re-employ him when he was discharged from the hospital, and see that he was looked after for the rest of his life. On the strength of this assurance he was persuaded to file a leave application, in which he said falsely that he fell into a channel and so wanted some leave. After his discharge from the hospital some time in November, he was re-entertained. On 1 March, 1934, he was dismissed from service, apparently because he was not able on account of his injury to perform his duties properly. Lawyer's notices were sent to the employers, who denied that the mill was open on the day of the accident and asserted that the appellant had been on leave. As no satisfactory reply was forthcoming, an application was made before the Labour Commissioner on 27 March, 1934. Although this was beyond six months from the date of the accident, the application was entertained and treated as a claim for compensation, and some enquiry seems to have been made. On 23 April, 1934, the Commissioner asked the appellant to furnish certain particulars and to furnish a medical certificate. Before that date, the Inspector of Factories, to whom the application for compensation was referred, received a letter from the respondents asserting that the day on which the accident was alleged to have taken place was a Sunday and that the mill was not open on that day. They also referred to the leave application of the appellant in support of their contention. On 12 May, 1934, the Commissioner passed an order which seems to me very discreditable. Instead of dealing with the application on its merits after having apparently condoned the delay in filing the application, he dismissed the application on the technical ground that it was barred by time under Section 10 (1) of the Workmen's Compensation Act. Although the unfortunate appellant had engaged lawyers in connection with this matter with regard to sending notices and so on, he was not advised to take this matter to the High Court, under Section 30 of the Act. Instead, he filed the present suit on 1 August, 1934, before the District Munsif, Tinne-velly, for compensation and for damages for negligence. That suit has been dismissed on the ground that it is barred by Section 3 (5) of the Workmen's Compensation Act and that decision was confirmed on appeal by the Subordinate Judge.

(2.) It is first contended that if the letter to the Commissioner was an application for compensation, it was not barred by time under Section 10 (1). Section 10 (1) reads: No proceedings for the recovery of compensation shall be maintainable before a Commissioner unless notice of the accident has been given, in the manner hereinafter provided as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been instituted within six months of the occurrence of the accident....

(3.) There are certain provisos to this section which enable the Commissioner to dispense with some of these limitations. It is contended that the claim for compensation referred to in Section 10 (1) means a claim made of the employers and not a formal claim made before the Commissioner. The section speaks of a claim being instituted. "Instituted" implies the formal making of a claim before some tribunal and is not the same as making a claim of the employer. Moreover, the words "claim" and "instituted" are referred to not only in Section 10 (1). Even the third proviso to Section 10 (1), gives a clear indication of the meaning of the word claim for it runs: Provided further that the Commissioner may admit and decide any claim to compensation in any case notwithstanding that the notice has not been given or the claim has not been instituted in due time as provided in this Sub-section (1)....