SALAMAT Vs. AGENT, EAST INDIAN RAILWAY

JUDGEMENT

(1.) This is an appeal by the workman Salamat against the decision of the Commissioner for Workmen's Compensation, Bengal, given on 5 August 1936 wherein he refused to award compensation under the Workmen's Compensation Act to the appellant. The respondent is the Agent of the East Indian Railway Company. The facts are as follows. In 1925 the workman was employed at the railway workshop at Lilooah, then owned by the East Indian Railway administration, but now taken over and run by the East Indian Railway Company. Whilst he was so employed, an accident happened when he was operating a machine saw with the result that his thumb and the first three fingers of the left hand were damaged and had to be amputated. After attending hospital for three or four months, he returned to the same workshop and was employed by the same employers on the same or other work on which he earned the same wages as before. As time went on, his wages were increased and he actually received promotion. On 2 August, 1935, he was discharged from work because he was found to be in possession of some jute which was believed to be stolen. On 14 January 1936, the appellant, through a pleader, applied for re-instatement and also for compensation under the Workmen's Compensation Act. The respondent refused this. On 22 February, 1936, another similar request for re-instatement and compensation was made and this was again refused. On 28 March 1936 the applicant started proceedings before the Commissioner for Workmen's Compensation to recover compensation under the Act in respect of the accident which had occurred in 1925. The Commissioner refused to award him compensation first, holding that it was not proved that an accident had happened to the applicant which arose out of and in the course of his employment and, secondly that the delay to bring the proceedings for a period of 11 years barred the applicant of his rights under the Act. As regards the first ground for the Commissioner's decision, I am unable to agree with him. The applicant in his evidence said: I was a workman on E.I.R. and injured during my employment. I was engaged on a saw machine on 4 November 1925. My hand was injured--the left. All my fingers were shorn off except the little finger. I was sent by the administration to Lilloah Hospital and admitted and remained three months. When I was discharged I went back to the Railway and was told to go to work. I asked for compensation to the foreman and was told arrangement would be made. I was given suitable employment. I often made tagid. Formerly I got 12 annas per day and thereafter 12 annas per day. I brought no claim in the Court because the foreman kept on putting me off. About four years ago the foreman was transferred. Then I was promoted and did not think it judicious to bring a claim.

(2.) That is the applicant's story. The respondent by reason of the delay is in a difficult position as regards giving evidence as to the happening of the accident. It is difficult to produce witnesses after 11 years to speak with any certainty as to the circumstances of the accident. Some of the respondent's records have been destroyed, but not all of them. The respondent called a witness-Dharmadas Ghose-who produced a register of accidents for 1925. He gives a description of Salamat and his injury. The respondent in his written statement, para. 5, admits that on 4 November 1925 an accident happened to the applicant when ho was employed as a labourer and thereby the following injury was caused to the applicant - compound commutated fracture of thumb index, middle and little fingers of the left hand .

(3.) The learned Commissioner did not feel himself justified upon that evidence and those admissions in coming to a conclusion that the accident which happened, arose out of and in the course of the applicant's employment. There is no suggestion anywhere in the evidence or in the written statement that the applicant was, at the time of the accident, doing something which disentitled him to compensation by reason of the Proviso to Section 3 (1) of the Act. That being so, in my view, the Commissioner ought to have come to the conclusion that this appellant workman did suffer an injury from an accident arising out of and in the course of his employment on 4 November 1925. The second matter that I have to consider is that which is raised by Section 10 of the Act. Leaving out the irrelevant words and passages that section provides: Sub-section (1). 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 or, in case of death within six months from the date of death: 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, if he is satisfied that the failure so to give the notice or institute the claim, as the case may be, was due to sufficient cause.