Madhya Pradesh High Court
Pradesh Mining Corporation vs Munde Kol on 11 July, 1989
Equivalent citations: II(1990)ACC127, 1991ACJ486
JUDGMENT Gulab C. Gupta, J.
1. This is employer's appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') against the order dated 31.3.1981 passed by the Commissioner for Workmen's Compensation, Thehdol, in Case No. 20 of 1979 awarding a sum of Rs. 3,528/-as compensation for employment injury suffered by the respondent on 24.8.1977.
2. The respondent in his application filed before the Commissioner for Workmen's Compensation at Thehdol claimed that he was employed as a workman with the appellant on a monthly wage of Rs. 150/-. It was his case that on 24.8.1977 at about 11 hours while at work, he suffered injury because of a fall of earth on him and became unfit for employment. The appellant in its written statement admitted that the respondent was a workman employed by it but denied that on 24.8.1977, he was in employment or suffered any injury during the course of employment. Its case was that on 24.8.1977, the respondent remained absent and therefore, his services were terminated. It, therefore, denied its liability to pay the compensation. It was also its case that no notice of the accident as required under Section 10 of the Act was given and therefore the claim was not maintainable. During the trial on 5.2.1981 before the Commissioner, on an application filed by the appellant, the respondent was directed to appear before the Civil Surgeon, Satna on 20th March, 1981 for medical examination. The Civil Surgeon was directed to ascertain the age of the injury existing on the person of the respondent. From the proceedings, it appears that on 26.3.1981 when the report of the Civil Surgeon was to be received, the appellant and its advocate remained absent and therefore the case was proceeded export? against it. Arguments were heard and the case was closed for orders on 8.4.1981. It, however, appears that the order of the court was ready on 31.3.1981 and hence it was delivered in the open court and parties informed. The learned Commissioner relying on the evidence of the respondent held that the respondent had suffered 15 per cent loss of his earning capacity. He rejected the defence of the appellant that the respondent was absent on the date of accident by holding that the appellant has not produced register maintained by it in accordance with law. That is how the compensation, as aforesaid, was awarded.
3. The submission of the learned counsel for the appellant is that the claim was not maintainable in the absence of notice required to be given by the respondent under Section 10 of the Act and therefore the impugned order deserves to be set aside. It is also submitted that non-examination of the respondent by the Civil Surgeon in spite of the order of the Commissioner disentitles him to claim the compensation.
4. Section 30 of the Act authorises this court to entertain an appeal only if a substantial question of law is involved in the case. The words "substantial question of law" have not been defined anywhere in the statute and yet they have acquired a definite connotation through various decisions of our Supreme Court and various High Courts. In Chunilal Mehta v. Century Spinning & Mfg. Co. Ltd. AIR 1962 SC 1314, the Supreme Court laid down the following 5 tests to determine whether a substantial question of law is involved in the appeal and held that even if any one of them is satisfied, the appeal would be entertained. These tests are: (1) whether directly or indirectly it affects substantial rights of the parties; or (2) the question is of general public importance; or (3) whether it is an open question in the sense that issue is not settled by the pronouncement of the Supreme Court or Privy Council or by the Federal Court; or (4) the issue is not free from difficulty; and (5) it calls for a discussion for alternative view. Applying the aforesaid tests a Full Bench of Allahabad High Court in Abida Khatun v. General Manager, Diesel Locomotive, Varanasi 1972 ACJ 489 (Allahabad), held that a finding without evidence suffers from substantial error of law. Applying these very guidelines, this court in Chottelal v. Dhallomal Sindhi 1984 ACJ 591 (MP), held that the question whether the workman had become subject to disability or permanent disablement is one of fact. The Bombay High Court in Bhumanna Poshanna v. R.N. Ghanekar & Co., Bombay 1979 ACJ 78 (Bombay), held that whether a person is in employment of the other is not a question of law but a question of fact, which cannot be gone into in an appeal under Section 30 of the Act. Under the circumstances, there is no scope of interference by this court on a finding which could be treated to be a finding of fact. A finding of fact must, therefore, be held to have become final. Applying the aforesaid tests, it must be held that it is no longer open to the appellant to contend that the respondent was not employed on 24.8.1977 and suffered no injury while working on that date.
5. Section 10 of the Act obliges a claimant to give notice of the accident to the employer as soon as practicable after the accident. This section has been interpreted to mean that what is required is a mere notice of the accident and does not mean notice of details of the accident. [See Ali Mohammed v. Shankar AIR 1946 Bom 169]. The 4th proviso to this section indicates that want of or any defect or irregularity in a notice shall not be a bar to the entertaining of the claim if the employer or any person responsible to the employer for the management of business in which the injured workman was employed, had knowledge of the accident from any other source at or about the time when it occurred. Relying on this proviso it has been held that where the injured workman was removed to the hospital from the factory and thereafter he approached the employer several times for compensation and employment, the requirement of this proviso will be satisfied and absence of a written notice would not be a bar to entertaining the claim. [See Jailchand v. Vithal AIR 1983 Bom 109 and Fakiragram Rice Mills v. Ramu AIR 1950 Assam 188]. Similarly, in Makhenlal v. Audh Bihari AIR 1959 Allahabad 586, it was held that where an accident takes place in the presence of the employer, no notice was necessary. The last proviso to this provision, however, entitles the Commissioner to entertain and decide any claim to compensation even if the notice has not been given provided he is satisfied that failure to give notice was due to 'sufficient cause'. The respondent in his application had averred that the appellant had notice of the accident at the time of the accident and therefore a separate notice was not given. He has further averred that he had approached the employer several times for settlement but did not succeed. In his statement in the court during cross-examination he has asserted that he suffered accident in the mine in the presence of several workers whom he had named. He has asserted that manager, foreman and mining mate knew about the accident. None of these persons have been examined to contradict him. A perusal of the Mines Rules would indicate that workers work under the general supervision of the mining mate and are not the persons responsible for working of the mine. A foreman under the concerned mining regulation is a person responsible for safe working of the mine. Clearly, therefore, presence of manager, foreman or mining mate in the mine at the time of working is not probable and if therefore the accident has happened during the working of the mine, they could have had the knowledge of the same. Clearly, therefore, the statement of the respondent in this behalf appears to be correct. In case the appellant was serious in denying its knowledge of accident, it should have examined some of these officers in the court. Unfortunately, it remained satisfied by examining a time keeper, who is not concerned with this matter. In this view of the matter, service of further written notice was not required and the impugned order suffers from no illegality on that account. As far as the respondent's examination by the Civil Surgeon is concerned, the same appears to have been ordered under Section 1 of the Act. The said provision, in term, does not apply to the facts and circumstances of the case. Even if it was to be held that the case was covered by Sub-section (2) of Section 11, it is nobody's case that respondent refused to submit himself for examination. In the impugned judgment the learned Commissioner has recorded that the respondent had appeared before the Civil Surgeon but he was not examined. There is no challenge to the correctness of this statement nor there was any further request by the appellant to send the respondent back to the Civil Surgeon for examination. It was the responsibility of the appellant to press its application for medical examination in case it so desired. Privilege conferred by this provision is the privilege of the employer and therefore, it was for it to take steps to subject the workman to medical examination, if it really intended. The fact it remained absent on the date fixed for the purpose is sufficient to indicate that the plea was really a plea. It is, however, seriously pressed for consideration of this court in this appeal in the absence of anything more substantial. The facts on record, however, do not justify an interference of this court on this account.
6. In view of the discussion aforesaid, the appeal fails and is dismissed. Since no one has appeared for the respondent the parties shall bear their own costs of this appeal.