ABBU BAKAR ABDUL RAHMAN & COMPANY Vs. NARAYANTL

JUDGEMENT

(1.) POLLOCK , A.J.C. 1. The respondent has been awarded Rs. 819 as compensation under the Workmen's Compensation Act, 1923, for the loss of sight in one eye, which the Commissioner has found to have been caused by an accident arising out of the scope of his employment as a gin-fitter in the factory of the appellant. The appellant appeals against that award on three grounds : first that the application was not maintainable in the absence of proper notice, secondly that the loss of sight was not caused by any accident in the factory, and thirdly that if any such accident did occur it did not occur in the course of his employment. The Commissioner has found that while the respondent was scraping the cylinder of the gas engine in the appellant's factory, on 26th November 1930, a particle of rust entered his eye, and that this eventually caused complete loss of sight in that eye. Under Section 30 of the Act no appeal lies unless a substantial question of law is involved. This finding of the Commissioner therefore, which is based on the evidence of the respondent and Dr. Saoji, A. W. 2, who treated the respondent at the request of the manager of the factory, is a finding of fact that cannot now be challenged. The evidence of Dr. Saoji, which the Commissioner has accepted as true, shows that the manager of the factory was informed of the accident at the time and that it was at his request that Dr. Saoji treated the respondent. Sub-section (1), Section 10, of the Act lays down that no proceedings for the recovery of compensation shall be maintainable unless notice of the accident has been given, in the manner thereinafter provided, as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, with the proviso that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice has not been given in due time if he is satisfied that the failure to give notice was due to sufficient cause. Sub-section (2) prescribes the form of the notice.

(2.) APPARENTLY no written notice was given to the manager until 11th April 1931, when a notice, Ex. A-2, was sent. It is contended that that notice was not a proper notice because it was not given within reasonable time and does not state the cause of the injury. The certificates of Dr. Saoji shows that the respondent was under his treatment until 31st March 1931, and it appears that it was not until then that the respondent realized that he was not going to recover the use of his eye. The Commissioner is the sole judge to determine whether or not the want of or a defect in, a notice shall bar the proceedings, and his decision is one of fact which cannot be appealed against except on the ground that there is no evidence to support it. The fact that the respondent did not realize until the end of March that he had permanently lost his eye sight of one eye, is I think, sufficient cause for his not giving notice earlier, and the omission in the notice to state the cause of injury was not material when the manager of the employer was already aware of it. The respondent was employed as a gin-fitter for the upkeep and repair of the gins and was required to perform such duties as the manager or engineer might allot to him. The evidence that be was scraping a cylinder of the gas engine under the orders of the manager and engineer is probably untrue, but I think there can be no doubt that he was doing this work by the order of the driver of the engine and not of his own accord. His own statement that he could not refuse to obey such an order is, I think, accurate, and I agree with the Commissioner's finding that the accident therefore occurred in the course of his employment. The fact that he was obliged to perform such duties as the manager or engineer might allot to him would not exclude his liability to perform such duties as might be allotted to him by anyone else set over him. The three grounds on which the appeal has been argued are therefore untenable and the appeal is dismissed without notice to the respondent.