R B FORSYTH Vs. BNRAILWAY CO

JUDGEMENT

(1.) This is an appeal from a decision of the Commissioner for workmen's compensation in Singhbhum by one Forsyth who was a driver in the employment of the Bengal Nagpur Railway Company. An accident occurred on 1 February 1929, and the claimant received injuries. He was given injury leave up to 18th April 1929, and: thereafter privilege leave until 18 June 1929. He resumed duty on 19 June 1929, and continued until the 7 October 1929. Then he had several alternative periods of duty and leave until he was finally discharged from the service of the Railway Company on 24 May 1931.

(2.) His claim for compensation is dated 7 August 1933, that being the first occasion on which he claimed compensation under the Act and his claim took the form of a proceeding under the Workmen's Compensation Act before the Commissioner. The Commissioner had to consider two points: firstly whether the notice of claim by the claimant was within time, having regard to Section 10, Workmen's Compensation Act, and the second point that he had to consider was whether on the merits the claimant was entitled to compensation. He decided that the workman, notwithstanding that he had filed his claim more than two years after the accident, had reasonable cause within the terms of the proviso to Sub- section (1), Section 10. He then proceeded to consider the merits of the case and decided against the claimant. The claimant has appealed from the decision of the Commissioner to us. The respondents have supported the decision ofthe Commissioner but have supported it for reasons other than those advanced by the Commissioner and the substantial part of the respondent's case is that the Commissioner should have held that the delay in the making of his claim by the appellant was without reasonable cause and that he should not be considered to be protected by reason of the proviso. The proviso to Section 30, Sub-section (1) of the Act states that "no appeal shall lie against any order unless a substantial question of law is involved in the appeal." The question therefore before us was whether the decision of the Commissioner holding that the facts constituted a good and reasonable cause for the delay in making the claim involves a question of law or merely a question of fact. That question has been agitated in previous cases and the leading authority upon the matter is the English case of Shotts Iron Co. Ltd. V/s. Fordyce 1930 AC 503 decided by the House of Lords. There their Lordships held that although the facts must be found by the first tribunal, the question of whether such facts do or do not constitute a reasonable cause for making the delay is a matter of law. That case has been followed under the Indian Act, notably in Halemabi V/s. Ardeshir B. Cursetji 1933 Bom 197 by the High Court of Bombay.

(3.) We therefore must first consider this question of law. The facts are clear and simple. The accident, as I have said, took place on 1 February 1929, and it is true that the claimant did his best to come back into the employ of the Railway Company, but stated that he was not fit to drive a locomotive and the Medical Officer of the respondent Company concurred in that opinion. He had already been given a considerable amount of leave and in February 1931 the Medical Officer stated that there were indications that he was in a nervous condition and that he had made up his mind that he was unable to work as a driver, and therefore the Doctor thought that he, the claimant should not be put back on the footplate. On the claimant making an application for light employment, especially for employment as Trial Inspector, he was informed on 33 July 1931, that that application could not be entertained firstly because there was no vacancy in the post which he sought and secondly that he was not considered suitable and he was told that it was necessary for him to retire from the service. He nevertheless continued to bombard the authorities of the Railway with requests that his case should be reconsidered. On 24 August 1931, the Chief Mechanical Engineer reminded the claimant that though he had asked for re-examination by the Medical Officer for fitness as a driver on the main line, he had failed to follow up that application and he was reminded that he could not be given employment on a light job but that if he persisted in his wish to be re-examined as a driver he would so be re-examined. However nothing appears to have been done and the Chief Mechanical Engineer wrote to him on 10 September 19131, in reply evidently to further letters from the claimant, that a final reply would be given to him in a couple of days. As a matter of fact, on 5 December 1931, the matter received the attention of the Agent, who is the highest authority in these matters of the Railway. The Agent had been appealed to by the appellant with a view to a revision of the Chief Mechanical Engineer's orders. The Agent's reply was very distinct and of a final nature stating: I am not prepared to interfere with the orders issued in your case. This is final and further correspondence will be of no avail.