Madras High Court
The Asst. Executive Engineer vs A.Booman on 26 March, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.No.690 of 2001 and C.M.P.No.9131 of 2001 1.The Asst. Executive Engineer, Tamil Nadu Electricity Board, Natham. 2.The Executive Engineer, South, Tamil Nadu Electricity Board, Dindigul. 3.The Superintending Engineer, Dindigul Electricity Distn. Circle, Tamil Nadu Electricity Board, Meenakshinaickanpatti, Dindigul-2. .. Appellants Vs A.Booman .. Respondent Prayer Appeal filed under Section 30 of the Workmen Compensation Act, against the order dated 15.02.2001 passed in W.C.No.147 of 2000 by the Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul. !For Appellants... Mr.M.Suresh Kumar ^For Respondent... Mr.R.Nandakumar :JUDGMENT
This appeal is focussed as against the order dated 15.02.2001 passed in W.C.No.147 of 2000 by the Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul.
2. Heard both sides.
3. The Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul vide order dated 15.02.2001 awarded compensation to a tune of Rs.1,79,604/- (Rupees one lakh seventy nine thousand six hundred and four only) to the claimant.
4. The challenge in this appeal is relating to the award passed by the Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul on various grounds; the nitty-gritty of it would run thus:
The Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul failed to consider that the claimant had not sustained any scheduled injury. To prove the alleged permanent disability of the claimant, no doctor was examined. The sum of Rs.1,79,604/- (Rupees one lakh seventy nine thousand six hundred and four only) awarded in favour of the claimant was without any basis. The accident did not occur in the course of the employment. Accordingly, the appellants prayed for setting aside the award passed by the lower authority.
5. The following substantial question of law was framed by my learned Predecessor at the time of admitting this Civil Miscellaneous Appeal:
"Whether the Deputy Commissioner of Labour is correct that disability of a person should be based on the examination of the concerned Doctor but in this case, the concerned Doctor who issued disability certificate was not examined by the Respondent and hence the percentage of injury could not be arrived at the proper calculation and perspective?"
6. At the outset itself, the learned counsel for the appellants would raise a legal plea that the claim was barred by limitation; even though in the counter filed before the lower authority; such a plea that the claim is barred by limitation as per Section 10 of the Workmen Compensation Act, 1923 was raised, the lower authority did not consider it; that there was no application also for condoning the delay without adverting to the plea of the appellants, the lower authority awarded compensation.
7. I would like to make the point clear that such an argument cannot be countenanced at this stage. In the appeal memorandum, absolutely there is no whisper about the limitation point. Section 30 of the Workmen Compensation Act, 1923 is reproduced here under for ready reference:
"30. Appeals-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-
(a)an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
[(aa) an order awarding interest or penalty under section 4-A;]
(b)an order refusing to allow redemption of a half-monthly payment;
(c)an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;
(d)an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section(2) of section 12; or
(e)an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause(b), unless the amount in dispute in the appeal is not less than three hundred rupees:
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties: [Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.] (2) The period of limitation for an appeal under this section shall be sixty days.
(3)The provisions of section 5 of [the Limitation Act,1963(36 of 1963], shall be applicable to appeals under this section."
(emphasis supplied)
8. It is clear that there should be substantial question of law raised by the appellants and thereupon this Court has to frame a substantial question of law and only on that adjudication is warranted. Here in the grounds of appeal, there was no ground raised regarding limitation and correspondingly no substantial question of law also was framed.
9. The learned counsel for the appellants would submit that the limitation point can be raised at any stage. I would hold that such an argument cannot be countenanced for the following reasons infra:
The maxim "Culibet licet renuntiare juri pro se introducto" would clearly highlight that the limitation could be waived by the party concerned, if it is not against the public policy. In the famous treatise Maxwell on The Interpretation of Statutes (Twelfth Edition) it is found set out as under:
"Culibet licet renuntiare juri pro se introducto" (So a person may agree to waive the benefit of the Limitation Act.)
10. As such, it is clear that once the limitation point has not been raised in the grounds of appeal and consequently there has been no framing of substantial question of law on that point, the learned counsel for the appellants cannot orally raise such a plea at the time of arguments. This Court in District Collector, Chidambaranar District v. John Nadar reported in AIR 2007 Madras 228 held that when a citizen approaches the Government for relief, the latter should not plead limitation. My mind is redolent with the decisions of the Hon'ble Apex Court in S.R.Bhanrale v. Union of India reported in (1996) 10 Supreme Court Cases 172 and this Court in Oriental Insurance Co., Ltd., v. Karur Vysya Banka Ltd., reported in 2001(2) CTC 400.
(i) An excerpt from the decision of the Hon'ble Apex Court in S.R.Bhanrale v. Union of India reported in (1996) 10 Supreme Court Cases 172 would run thus:
"4. The amounts now paid to the appellant admittedly fell due to him much before his retirement. The same was wrongfully withheld. It was, to say the least, improper on the part of the Union of India to plead the bar of limitation against such claims of its employees, when it had defaulted in making the payments promptly when the same fell due. It is not as if the appellant had woken up after a decade to claim his dues. He had been asking the Department to pay him his dues both while in service and after superannuation also but to no avail. In these circumstances it ill behoved the Union of India to plead bar of limitation against the dues of the appellant. We need say no more about it because better sense has prevailed and claim of the appellant has now been settled and payment made to him. The appellant who had served the Department for almost 40 years before his superannuation was made to run from pillar to post to get his legitimate dues. It is a sad commentary of affairs. He has undoubtedly suffered a lot. Had the amount which has now been found due and paid, been paid to him at the appropriate time at least in 1984 when he retired, the appellant would have been saved from a lot of unnecessary harassment; besides he would have earned interest on that amount also. He could have utilised that amount for other purposes. He was denied the same on account of the default of the Department. The appellant in his reply to the statement of account filed by Shri Arya in this Court has claimed almost 18 lakhs of rupees from the Department out of which more than Rs.16 lakhs has been claimed towards interest and compensation etc."
(emphasis supplied)
(ii) An excerpt from the decision of this Court in Oriental Insurance Co., Ltd., v. Karur Vysya Banka Ltd., reported in 2001(2) CTC 400 would run thus:
"15. Before winding up, it is also useful to refer the decision of the Supreme Court in Madras Port Trust v. Hymanshu International, AIR 1997 SC 1144 regarding frequent technical objection being raised by Government and public authorities include Insurance companies. The case before the Supreme Court which pertains to refund of amount of wharfage, demurrage and transit charges paid to the appellant therein, was barred by Section 110 of the Madras Port Trust Act (II of 1905) in para 2, Their Lordships have held thus:-
"2.... The plea of limitation based on this section is one which the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a Public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable...."
The above observation of the supreme Court decries the technical plea taken by the insurance company. We have already held that though the claim was repudiated by the Insurance company on 23.09.85, the same was received only on 28.09.85 and the 12 months' period from the date of the said disclaimer ends on 28.9.86. The said day (28.9.86) being a Sunday, the plaintiff Bank is entitled to file a suit on 29.9.86 that is on the next working day as observed by the Supreme Court, it is unfortunate that the appellant insurance company having taken a policy cannot be permitted to take such a plea to defeat the just claim of the plaintiff. The Insurance companies, when citizens make claim based on their policies, must act fairly and such technical plea should not ordinarily be taken up unless the claim is not well-founded. We have already observed in the earlier part of our judgment immediately after the fire accident that is on 5.10.83, there were serious of correspondences and discussions for the settlement of claim in terms of the policy at the higher level and due to failure in settling the claim through negotiations, the plaintiff Bank has rightly filed the suit within the prescribed period; accordingly the objection by the insurance company on the ground of delay in filing the suit cannot be sustained. As a matter of fact except filing a written statement nothing has been brought before the trial court in the form of oral and documentary evidence in support of their defence. The learned Subordinate Judge, on appreciation of oral and documentary evidence let in by the plaintiff Bank, has correctly granted the decree to the extent of Rs.19,18,792 with interest 12 per cent from 5.10.83 that is the date of occurrence till date of settlement. We do not find any error or infirmity in the impugned judgment of the learned Subordinate Judge. On the other hand, we are in agreement with the conclusion arrived at by the learned Judge, since the same is based on acceptable and legal evidence." (emphasis supplied)
11. The Workmen Compensation Act is a benevolent legislation intended to provide succour to the hapless and helpless victims of accidents in the course of employment. Here, the medical records would speak by itself that in the course of employment an an Wireman, the claimant sustained severe electrocution and because of that his body below his hip got paralysed.
12. At this juncture, the learned counsel for the appellants would unconvincingly submit that there is no clinching proof to show that there was permanent disability, forgetting for a moment, that Ex.A5, which was issued by the Superintending Engineer, Tamil Nadu Electricity Board, Dindigul, compulsorily retiring the claimant from service only on the ground of his permanent disability, which resulted consequent upon the injury sustained by him in the course of his employment. In such a case, it is clear that the employer cannot take a quite antithetical stand to what he himself set out in block and white in Ex.A5. The substantial question of law itself is on the point as to whether the doctor should have been examined to prove the disability. To the risk of repetition without being tautologous, I would like to highlight that Ex.A5 issued by the employer himself would clearly highlight that the claimant sustained disability and only on that basis, the claimant was made to face premature retirement. In such a case, Ex.A1 to A4, the medical documents can rightly be held to have been proved and over and above that examination of the doctor to prove the permanent disability was not at all warranted in the facts and circumstances of the case and accordingly the substantial question of law is answered.
13. The Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul appropriately and correctly considered the medical records and assessed the permanent disability. As such I could see no infirmity in the order passed by the lower authority.
14. I, therefore do not find any merit in this Appeal and it is dismissed. The award of the Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul is confirmed. No costs. Consequently, the connected M.P. is also dismissed.
smn To The Court of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul.