THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL MISCELLANEOUS APPEAL No.1118 of 2002 Dated:- 08th August, 2011 Between:- Divisional Railway Manager, Vijayawada Division, South Central Railway, Vijayawada and another …Appellants AND Dondapati Pitchaiah and another …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL MISCELLANEOUS APPEAL No.1118 of 2002 JUDGMENT:- The Divisional Railway Manager, Vijayawada Division, South Central Railway, Vijayawada, being aggrieved by the order dated 30.03.2001 passed in W.C.C.No.59 of 1999 by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour – I, Guntur, (‘lower authority’, for brevity), in awarding compensation of Rs.13,135/-to the Workman, filed this appeal. 2. The appellants herein are the respondents and the first respondent herein is the applicant before the lower authority. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the lower authority. 3. The applicant is a workman. He filed an application before the lower authority seeking compensation of Rs.1,00,000/- contending inter alia that he worked as casual labour under the appellants’ from 10.01.1967 to 09.07.1978; that on 09.07.1978, while he was on duty, he sustained severe injury to his right eye when a stone hit his right eye; that he was referred for treatment to the Assistant Divisional Medical Officer (Health Unit), Medical College Road, Guntur (‘Medical Officer’, for brevity), for treatment; that in spite of the treatment, he lost the vision of his right eye; that he was referred to the Medical authorities so as to ascertain whether he was fit for the post of Gangman; that a certificate bearing No.037796 dated 21.07.1989 and 28.07.1989 was issued by the Medical Officer that he was unfit for the post of Gangman; that thereafter, neither any alternative job was provided nor any compensation was paid to him by the Railways; that he was aged about 23 years at the time of accident and was earning Rs.3,000/- per month; that he approached the appellants’ under whom he worked for compensation or alternative job and submitted number of representations, but in vain; and that ultimately, he approached the lower authority seeking compensation. 4. The respondents/Railways contested the matter and filed counter contending that the claim of the first respondent is barred by limitation in view of inordinate delay of 5232 days on his part in approaching the lower authority seeking compensation; that the workman failed to explain the delay; that the workman was not a permanent employee but was engaged as casual labourer on 10.09.1967; that there is no relationship of employer and the employee between the Workman and them; that the workman has not sustained any injury in the course of employment; the Railways have sent the workman for medical examination for giving scale to him, but however, he was declared unfit for B-I and fit in C-I vide certificate bearing No.037796 dated 21.07.1978 and 28.07.1978; that second time also he was sent for re-medical examination and he was found unfit in B-I and fit in C-I with glasses vide Medical Officer’s Certificate bearing No.055747 dated 24.05.1980 and 29.05.1980; that subsequently the workman abandoned the work. 5. Evidence was let in. On behalf of the applicant/workman, he himself was examined as A.W.1 and one M.Krishnaiah was examined as A.W.2 and Exs.A.1 to A.3 were marked. On behalf of the respondents/Railways, R.W.1 – Md.Abdul Hyi was examined and Ex.R.1 – Accident Register was marked. 6. The lower authority, on appreciation of oral and documentary evidence on record, held that the workman sustained injury during the course of employment and, therefore, he is entitled for compensation and that the workman sustained injury to his right eye and lost complete vision and that as per the schedule injury, the loss of earning capacity is 40%. Holding thus, the lower authority allowed the application of the Workman awarding a compensation of Rs.13,135/- and ordered the respondents/Railways to deposit the said amount in the bank within 30 days from the date of the order. Aggrieved by the same, the respondents/Railways are before this Court as appellants. 7. The main contention of Sri R.S.Murthy, learned standing counsel for the appellants’ herein/Railways is that there is inordinate delay on the part of the workman in approaching the lower authority. Relying on the judgment in the case between Mackinnon Mackenzie and Co. Private Ltd., Vs. Ibrahim Mahommad Issak[1], learned counsel submitted that to come within the act of injury, the accident must arise both ‘out of’ and ‘in the course’ of employment. Relying on the judgment in the case between Regional Director, E.S.I. Corporation Vs. Francis De Costa[2], it is his submission that in spite of the contention that the Workman sustained injuries during the course of employment, he must establish the same. Relying on the judgment in the case between The Depot Manager, APSRTC, Nirmal Vs. Abdul Sattar[3], It is his submission that the lower authority has given findings basing on no evidence and when such a finding has been given, they are perverse and are liable to be set aside. 8. Per contra, Sri A.Rajendra Babu, learned counsel for the respondent herein/Workman submitted that the Railways have not raised the issue of delay in filing the application before the lower authority and, therefore, no issue was framed by the lower authority and now, they cannot raise such issue before this Court. It is also his submission that the Workman was initially treated at the Railway Hospital and subsequently, he was sent to the Medical Officer for issuance of Fitness Certificate and, therefore, now they cannot say that the workman has not sustained any injury in the course of employment. 9. In view of the above rival claims, the only point that arises for consideration in this appeal is whether there are any grounds to allow the appeal. 10. It is true that there was inordinate delay on the part of the workman in approaching the lower authority seeking compensation and there is no proper explanation submitted by the workman for the said delay. But unfortunately, the lower authority neither formulated any issue nor given any finding on that issue. Admittedly, the impugned order was passed on 30.03.2001. Though there is inordinate delay on the part of the workman in approaching the lower authority seeking compensation and the lower authority did not formulate any issue and had not given any finding on that issue, I am of the view that after a period of nearly one decade, now, the matter cannot be remanded back to the lower authority for formulating such issue and to give findings. It is apparent from the record that the workman was initially treated at Railway Hospital and was subsequently referred to the Medical Officer for ascertaining whether he was fit for the post of Gangman. On 21.07.1978 and 28.07.1978 and on 24.05.1980 and 29.05.1980, the workman was examined and was declared unfit in B-I and fit in C-I. It is admitted by the Railways that they have referred the Workman for medical examination. Of course, it is not clear under what circumstances the workman was referred to medical examination by the Railways for declaring him fit or unfit to engage him as Gangman. In fact, the lower authority ought to have summoned the records form the Medical Officer to ascertain the same. However, the fact remains that the workman was referred to the hospital, which is under the control of the Railways, even on the date of accident and subsequently for ascertaining his fitness or otherwise for the post of Gangman. If at all the workman had not sustained any injury during the course of his employment, the Railways would not have referred him to their Hospital for treatment. The Railways ought to have filed the records from the Medical Officer to ascertain whether the workman had sustained injuries in the accident or not. It has to be seen that in the counter filed by the Railways, R.W.1 – Office Superintendent of Railways has admitted that the workman worked as casual labour on daily wages and that he was on duty on 09.07.1978, i.e., on the date of accident. Thus, the admitted fact that the workman was on duty on 09.07.1978 and that he was referred to the hospital by the Railways corroborate the case of the workman. 11. It is not in dispute that the workman was aged about 23 years as on the date of accident and that he lost his complete vision of the right eye, which was estimated as 40% disability by the Medical Officer. It is also the case of the Railways that there is no reference about the accident caused to the workman in Ex.R.1 – Accident Register. Merely because it is not noted in Ex.R.1 – Accident Register about the occurrence of the accident to the workman, that does not mean that the claim of the workman is incorrect. 12. In view of the above, there are no grounds to hold that the claim of the workman should be negatived and I do not see any reason to interfere with the impugned order. The appeal lacks merits and is liable to be dismissed. 13. Accordingly, the appeal is dismissed. The appellants herein are directed to pay the amount to the workman as determined by the lower authority within thirty (30) days from the date of receipt of copy of this order, failing which, they shall pay interest at the rate of 6% per annum from the date of the award of the lower authority, i.e., 30.03.2001 till the date of realization. There shall be no order as to costs. _________________________ Justice B.Chandra Kumar 08th August, 2011 Bvv [1] AIR 1970 Supreme Court 1906 (1) [2] AIR 1997 Supreme Court 432 [3] 1995 (1) ALT 413