Tripura High Court
The Secretary vs Sri Ajit Saha on 12 July, 2018
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
MFA (W/C) No.4 of 2014
1. The Secretary,
Revenue Department,
Government of Tripura,
having his office at Civil Secretariat,
Agartala, West Tripura, P.O. Kunjaban,
P.S. East Agartala
2. The District Magistrate & Collector,
West Tripura, Agartala, PIN: 799 001
3. The Block Development Officer,
Teliamura Rural Development Block,
Teliamura, P.O. & P.S. Teliamura,
District: Khowai Tripura,
4. The Panchayat Secretary,
Marchara Gaon Panchayat,
P.O. Marchara, P.S. Teliamura,
District: Khowai Tripura,
----Appellant(s)
Versus
1. Sri Ajit Saha,
son of late Rebati Mohan Saha,
2. Sri Abhijit Saha,
being represented by his father,
son of Sri Ajit Saha
3. Sri Prasenjit Saha,
being represented by his father,
son of Sri Ajit Saha
-all are residents of village: Uttarpara, P.O. Marchara,
P.S. Teliamura, District: Khowai, Tripura
----Respondent(s)
For Appellant(s) : Mr. N. Choudhury, G.A. For Respondent(s) : Mr. Somik Deb, Adv.
Whether fit for
Reporting : No
Page 2 of 12
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
12/07/2018
Heard Mr. N. Choudhury, learned G.A. appearing for the appellants as well as Mr. Somik Deb, learned counsel appearing for the respondents.
02. This is an appeal under Section 30 of the Employees Compensation Act, 1923 from the judgment and award dated 20.08.2013 delivered in T.S. (W.C) 17 of 2009 by the Commissioner, Employee's Compensation, West Tripura, Agartala.
03. The substantial questions of law, as formulated below, are apparently involved in the appeal. Proviso to Section-30 of the said Act obligates to show the existence of substantial question of law in the appeal, as it has been provided that no appeal shall lie against any order unless a substantial question of law is involved.
(i) Whether the Commissioner has acted illegally by not considering the aspect of limitation as provided under Section 10 of the Employee's Compensation Act 1923? and
(ii) Whether the Commissioner has failed to appreciate the evidence by way of reconciling the statements made in the examination-in-chief qua the pleadings and the reply given in the cross-
examination to find out whether the death of the employee occurred in the course and out of the employment?
04. The minimal basic fact as required to be laid at the outset is that one Smt. Anju Saha was a job card-holder vide No.06/123 under the Teliamura Rural Development Page 3 of 12 Block and she was favoured with the work order for 10(ten) days for construction of a katcha channel near Moharchara School by the Block Development Officer of the said block. According to the face pleaded by the claimant-respondents, the victim started her work on and from 01.10.2007 and on the 8th day out of the said ten days, she joined her work and suddenly she became ill between 11 a.m. to 11.30 a.m. in the working place near the bank of Khowai river under Moharcharra Gaon Panchayet. The place was surrounded by deep jungle and infested by mosquitoes. One doctor was attending there during the assigned duty hours. When the victim was afflicted by fever, she was examined by the doctor and she was advised to attend the Teliamura Rural Hospital where, later on, she was confined for about three days. According to the claimants, the doctor detected that the victim was suffering from Malaria. Further, her blood sample was examined in the laboratory. In the petition filed under Section 4 of the Employee's Compensation Act, 1923 it has been asserted that the victim had attended the work on 08.08.2007 under Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA in short) and she fell prey to the said fever in the work place. From the said 'injury' she died and her death is covered by Section-3 of the Employee's Compensation Act, 1923. According to the claimant-respondents, the victim used to earn Rs.8,000/- per month from various sources including working as the Page 4 of 12 job card-holder. Thus, they claimed the sum of Rs.6,00,000/- from the appellants with interest @ 12% from the date of accident.
05. The Commissioner has observed that since the appellants were aware of the said injury, the claimant- respondents did not serve any notice as required under Section 10 of the Employee's Compensation Act. This observation cannot be treated as a deviant observation for the reason that 4th proviso below Section-10 of the Employee's Compensation Act, 1923 provides categorically that for want of or for any defect or irregularity in the notice, the claim shall not be treated as barred if the claim is preferred in respect of death of an employee resulting from an accident which occurred on the premises of the employer, or at any place where the employee at the time of the accident was working under the control of the employer or of any person employed by him, and the employee died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured employee was employed had knowledge of the accident from any other source at or about the time when it occurred.
Page 5 of 12
06. It is not a case before the Commissioner, that the employer, the appellants had no knowledge about the death of the victim. After recording the evidence, the Commissioner has observed in the impugned judgment as under:
"From the claim petition as well as from the oral and documentary evidence of the petitioners, it is proved that the victim Anju Saha died while she was working as a worker under the National REGA scheme for construction of katcha channel from the land of Sri Rakesh Das's house to Moharcharra School via Moharcharra under the Opposite Parties. As such, the Opposite Parties are liable to pay the compensation to the petitioners with interest."
07. Mr. N. Choudhury, learned G.A. appearing for the employer-appellants has quite assertively submitted that the claim was barred under Section 10 of the Employee's Compensation Act. He has referred to the noting of the office of the Commissioner made on 01.09.2009, the day on which day the claim petition under Section 4A was presented before the Commissioner, Employee's Compensation, West Tripura, Agartala. In the said note the following has been made without any ambiguity:
"It is in form and duly stamped but not in time"
08. Despite that no curative action or no application seeking condonation of the delay has been preferred by the claimant-respondents. Moreover, Mr. N. Choudhury, learned G.A. has submitted that the claim is totally based on concocted story and that has been exposed during the recording of testimonies of the witnesses. According to him, what has been proved by the witnesses stands contrary to Page 6 of 12 the pleading and what has been stated in the examination- in-chief.
09. Mr. Choudhury, learned G.A. has further submitted that in the pleading the claimant-respondents have stated that on the 8th day, the victim joined her duty and suddenly became ill between 11 a.m. to 11.30 a.m. in the work-place. The said place was surrounded by deep jungle. A doctor was deputed in the field during the working time. At that time, the said doctor visited the victim and arranged to transport her to her house. Later on, her relatives brought her at Teliamura Health Centre as the condition was fast deteriorating. In the said hospital, she was confined for 3(three) days and the doctor told after treatment that victim was afflicted by malaria. The victim's condition became ricksome and the doctor referred her on 10.08.2007 to the GBP hospital, Agartala. She was admitted there in serious condition. But her life could not be saved.
10. Having regard to that aspect in the pleading Mr. Choudhury, learned G.A. has brought to the notice of the court the following paragraphs in the examination-in-chief:
"That my wife Anju Saha continued her work as labour till 08-08-2007 and on that day noon she suddenly fallen ill and became senseless on the spot. Seeing her condition other labourers came to the jungle land owned by Rakesh Das and found my wife unconscious in the said land suffering with high temperature in her body."
11. In reference to the statement as reproduced, Mr. Choudhury, learned G.A. has contrasted the cross- examination of PW-1. The cross-examination as referred is Page 7 of 12 of PW-1, Sri Ajit Saha, husband of the victim. PW-1 in the cross-examination has stated without any reservation as follows:
"It is a fact that my wife worked till 07-08-2007 and that due to her illness she was not allowed to work as a worker on 08-08-2007. Though she came for the work. It is a fact that on 07-08-2007 my wife was attacked with fever and that due to this she ultimately died."
12. In the cross-examination PW-1 did not assert in respect of commencing work on 08.08.2007. On the contrary he has unambiguously stated that the victim was not allowed to work on 08.08.2007. The witness was brought for corroboration to those fact and the fact relating to the income of the victim as stated. Sri Gouranga Ghosh [PW-2] has followed the same suit as he has stated as under:
"That, on 08-08-2007 at noon one labour namely Anju Saha suddenly fallen ill and seeing her condition ail the labourers rushed to the spot and seeing her condition I went to gave information to her husband Ajit Saha. Hearing the illness of his wife Ajit Saha then and then came with me to the bank of Khowai river and with the help of Archana Biswas and Saraswati Debnath, Anju Saha was shifted to Teliamura Rural Hospital. I also accompanied Ajit Saha to Teliamura Hospital."
13. In sequel, Mr. N. Choudhury, learned counsel has referred a part of the cross-examination, as carried out by the opposite parties, the appellants herein. In the cross- examination PW-2 has stated as under:
"It is not a fact that on 8.8.2007 she did not come for work W.V.:- 8.8.2007 as usual Anju Saha came for her work but she became more ill out of her fever and she had to be shifted to Hospital by me along with two others. It is not a fact that 8.8.2007 Anju did not come for her work and she was not taken to the hospital from the place of occurrence by us. It is not a fact that Anju died due to Mosquito bite in her work place on 7.8.2007 while she was cleaning kachha channel."Page 8 of 12
14. Mr. N. Choudhury, learned G.A. has finally submitted that in terms of Section 3 of the Employee's Compensation Act, 1923 it has to be established that injury which has been received, should be received in the course and out of the employment. There is no proof either oral or documentary that for the mosquito bite the victim died of malaria. Though the pleaded case is that she was immediately taken to the Teliamura Hospital and the doctors told PW-1 that she was suffering from Malaria and that was detected by way of the test of her blood. But no medical report was produced in the proceeding except the certificate in relation of the cause of death and the cause of death does not support the contention of the claimant- respondents.
15. Mr. Choudhury, learned G.A. has added that these testimonies were not properly appreciated by the Commissioner. The incongruities which were apparent on the face of record, has not been streamlined, but simply it has been recorded in the judgment that the victim died in the course of her employment and the appellants are responsible for making up the compensation. There is no other analysis, even the discrepancies as surfaced in context of the pleading have been left unanswered.
16. From the other side, Mr. Somik Deb, learned counsel appearing for the respondents has submitted that since after the note placed by the office of the Page 9 of 12 Commissioner, the trial has commenced, it has to be treated as condonation by implication. He has made an alternative submission, that if the court is not inclined to accept that plea, the matter may be remanded providing an opportunity to the claimant-respondents so that they can regularize the claim by filing the appropriate application for condoning the delay. That apart, Mr. Deb, learned counsel has strenuously argued that the apparent incongruities between the pleadings, examination-in-chief and the cross- examination are to be understood, not in a technical manner, but having due regard to the background from which have come to depose the witnesses.
According to Mr. Deb, learned counsel they are not adequately educated and they came from a rural habitat. As such, they may not be very mindful about the date and time of the occurrence. Those testimonies may not be taken on the face of statements. If the statements are appreciated in their entirety it would surface that from the mosquito bite which the victim received during her work on 07.08.2007 she fell ill and on 08.08.2007 she reported to the duty when, whether she was allowed to work or not is immaterial inasmuch as she was favoured with the work order from 01.08.2007. Plainly stating, she had suffered fever in the course of the employment.
17. Mr. Deb, learned counsel has further asserted that the very act is for the welfare of the employees and as Page 10 of 12 such the interpretation has to be made liberally so as to achieve the object. Thus he urged this court for waving the strict requirement to sustain the judgment and award passed by the commissioner.
18. Having appreciated the submission made by the learned counsel for the parties, this court has taken a journey through the record of evidence and finds that no application for condoning the delay was filed despite that note. The delay is a substantial delay inasmuch as the incident of death occurred on 10.08.2007 and the application under Section 4 of the Employee's Compensation Act was filed on 01.09.2009. But there is no explanation about the delay even in the claim petition filed under Section 4A and 10 read with Section 22 of Employee's Compensation Act, 1923.
19. In the written statement, the appellants had categorically raised the objection relating to the claim being barred by law of limitation [in para-2 of their written objection]. That aspect of the matter was not at all appreciated by the Commissioner. Unless the delay in exercise of the discretionary jurisdiction is condoned, the Commissioner of Employee's Compensation cannot exercise his jurisdiction for determining the compensation. It is a clear case where the claim is barred by limitation. The limitation had expired on 09.08.2007 whereas the application for compensation under Section 4 etc. of Page 11 of 12 Employee's Compensation Act, 1923 was submitted on 01.09.2009. It is apparent that the application was barred by limitation. Despite the said note, that aspect of the matter was neither considered by the Commissioner of Employees Compensation nor the claimant took steps for condonation. Merely, the claim petition was set in for inquiry, it cannot be held that the delay was condoned by implication for condonation, the commissioner had to satisfy with the causes, if any, might be assigned.
20. Since this court has observed that the commissioner had the lack of jurisdiction, as the claim was time-barred, this impugned judgment is bound to fail. However on the aspects of the appreciation of the evidence the Commissioner has miserably failed to notice the various parts of the testimonies and to reconcile them to unearth the truth. It is apparent that except the evidence in respect of the cause of death, is no other documents to show the nature and source of the 'injury'. The medical certificate was issued on the basis of the hospital records and the cause of death has been shown as Febrile Encephalopathy. What is the root of the said illness, there is no evidence at all. Whether the victim afflicted bite of mosquitoes is still in the penumbra and there is no specific evidence in this regard. Apart that, it has surfaced that the victim was suffering from fever from 07.08.2007 and thus the story of her falling ill during and in course of the employment on 08.08.2007 Page 12 of 12 cannot be believed for discrepancies as noted from the statements made by PWs-1 & 2 in the inquiry. The cumulative result of these observations is that the claim petition is liable to be dismissed and accordingly the same is dismissed. As consequence thereof the impugned judgment and award is set aside. Hence, this appeal stands allowed.
However there shall be no order as to costs. Send down the records after drawing the award.
JUDGE Moumita