1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4696/2009 Madanlalji Dwarkadas Dargad Age 50 years, Occ-Business R/o Opp. Vimal Mundada’s House Grossery shop, Ambejogai, Dist.Beed. .. PETITIONER [ORIG.RESPDT.) VERSUS Yusuf Dulekhan Shaikh Age 45 years, Occ-Mason (at present nil) R/o Khwaja Nagar, Khadgaon Road, Latur. .. RESPONDENT [ORIG.APPLICANT] .... Shri A.D.Kasliwal,Adv.for petitioner Shri Adgaonkar,Adv.for respondent. .... CORAM : R.K.DESHPANDE,J. DATE : 12/7/2010. ORAL JUDGMENT: 1] This Writ Petition challenges the order dated 17/3/2009 2 passed by the Commissioner for Workmen’s Compensation/Judge, Labour Court, Latur in Misc.W.C.A.No. 15/2008. By this order, application for condonation of delay caused in filing claim for compensation under the Workmen’s Compensation Act has been condoned. The Commissioner has recorded a finding that sufficient cause has been made out for condonation of delay and hence the application has been allowed. 2] Notice in this matter was issued on 21/7/2009 and ad- interim relief was granted in terms of prayer clause “C” regarding stay of proceedings before the Commissioner. 3] Shri Adgaonkar, the learned counsel appears for respondent sole. The learned counsels for the parties agree that the matter can be heard finally at this stage. Hence Rule. Rule returnable forthwith. By consent of learned counsel for the parties, petition is heard finally. 4] The accident in question has occurred on 17/8/2003. As 3 a result of this, it is not in dispute that the respondent complainant has lost both the legs. He filed proceedings under Section 10 of the Workmen’s Compensation Act on 3/10/2008. Since there was delay caused in filing such claim petition, it was accompanied by an application for condonation of delay. By the said application, delay of 36 months and 45 days was sought to be condoned. The reason put forth was that the applicant himself is bed ridden. His parents were illiterate and although notice was issued on 23/12/2005, as required under Section 10 of the said Act, the claim petition could not be filed within a period of 2 years. It is further stated that the papers were handed over to the Advocate for filing the claim Petition to issue notice on 6/9/2008 and therefore, the application for compensation was preferred on 3/10/2008. The respondent complainant was examined and crossed examined. He has stated that the papers were handed over to Mr.Shinde, Advocate, however, he had asked for some time as documents which could not be made available to him. As a result, the proceedings were not filed. He further stated that he was an indoor patient in the hospital for 1 and ½ month. 5] The petitioner denied that any sufficient cause is made out for condonation of delay. It is stated in the reply that the respondent was having adequate knowledge as the notice was issued on 23/12/2005. It is further denied that the claimant was bed ridden. 4 6] The Commissioner for Workmen’s Compensation in the impugned order has taken into consideration the reasons put forth for condonation of delay. After considering the judgments, it has been held that sufficient cause has been made out for condonation of delay. Shri Kasliwal, the learned counsel has invited my attention to the notice dated 23/12/2005 to which reference is made in the cross examination of the witness, to urge that limitation would start from that date. In my opinion, the provisions of Section 10 of the Workmen’s Compensation Act empowers the Commissioner to condone the delay notwithstanding the fact that no such notice was issued. Even if such notice was issued, the Commissioner has power to condone delay if claim is not preferred within time. Hence, issuance of notice dated 23/12/2005 is of no consequence, if sufficient cause is shown. 7] The learned counsel for the respondent-employee relied upon paragraph no.5 of the decision of the learned Single Judge of this Court reported in 2008 (supp.) Bom.C.R.228 in the case of Department of Telecommunication V/s Deelip Hari Mogle. The same is reproduced below : “5] Before I proceed to consider rival contentions as regards the question of limitation, it may be stated that the purpose of section 10 is to provide appropriate notice of the claim in question. The incident occurred on 5 16/5/1999. There is evidence on record to show that the respondent persuaded the Department to grant him compensation after his services were terminated. He pleaded from time to time and urged for grant of appropriate compensation. He gave notice dated 21/8/2001 but the same was not favourably considered. The purpose of section 10 appears to provide time limit as a general Rule. The Workmen’s Compensation Commissioner has discretion to entertain the claim, even though it is barred by limitation, if he is satisfied that the failure to give notice or prefer the claim within the prescribed period was due to sufficient cause. This proviso appended to sub-clause (1) of section 10 gives discretionary power to the Commissioner in an appropriate case to consider the application irrespective of delay. The provision enumerated under Section 10 does not require any separate application to be filed for condonation of the delay. In the present case, the Commissioner has duly considered the reasons and has exercised his discretion in the matter of entertaining the application beyond period of 2 years. The delay was not inordinate as such. It was noticed that due to injuries caused to both the legs, the claimant was paralyzed. He was unable to move and was bedridden for considerable period. The Compensation Commissioner considered the documents (Exhs.34 to 38) which would show that correspondence was going on between the parties regarding the claim for medical bills and the nature 6 of disability. It was stated by the claimant that he was assured reasonable compensation which ultimately was not paid. It is probable, therefore, that the claimant did not approach the Compensation Commissioner immediately because he believed that his claim will be settled by the Department. Consequently, it is difficult to say that the application was untenable because it was filed after the period of 2 years. I do not find any substantial reason to interfere with the discretion used by the Compensation Commissioner.” 8] He further relied upon para 5 of the judgment of this Court reported in 1994(2) Bom.C.R.522 in the case of Narsayya Ashanna C/o Dr.Dilip Gupta V/s Tata Robins Frazer Limited, which is reproduced below : “5] The sum and substance of the observations of their Lordships is nothing but the approach in respect of condonation of delay must be a justice oriented one. Section 10 of the Workmen’s Compensation Act, 1924, contemplates that no claim for compensation shall be entertained by the Commissioner unless notice of the incident has been given to the employer within the period of two years. However, there is a provision which speaks as under : “Provided further that the 7 Commissioner may entertain and decide any claim to compensation in any case, notwithstanding that the notice has not been given, or the claim has not been preferred in due time as provided in this sub-section, if he is satisfied that the failure to give notice or prefer the claim, as the case may be, was due to sufficient cause”. In view of the observations of Their Lordships in the case cited supra and considering the facts and circumstances of the case, particularly the injuries which the appellant has sustained, period of his treatment, intermittent operations, his financial condition, the period which has been considered as fatal to the claim made by the appellant/applicant, will not come in his way to debar him from claiming the compensation under the Workmen’s Compensation Act for which he is rightly entitled. From these circumstances, it is crystal clear that the accident and the compound fractures to his both legs resulting in his complete disablement even after discharge from the hospital and according to the expert, he was not in a position even to stand for half an hour, constitute sufficient cause for not approaching earlier.” 9] Shri Kasliwal, the learned counsel for the petitioner has relied upon the following judgments : [1] 2010 STPL (Web) 148 C in the case of Oriental Aroma Chemical Industries Ltd. V/s 8 Gujarat Industrial Development Corporation and another [2] 1998 (2) Mh.L.J.437 in the case of Victor Albuquerque V/s Saraswat Cooperative Bank Ltd. [3] 2007 (1) Mh.L.J.807 in the case of Kamalbai Narasaiyya Shrimal and another V.s Ganpat S/o Vithamrao Gavareand (4) AIR 1998 S.C. 2276 in the case of P.K.Ramachandran V/s State of Kerala and another. He has urged that the sufficient cause has been explained from the date of occurrence of the accident. According to him, no sufficient cause has been shown and the period from the date of accident i.e. from 17/8/2003 till issuance of notice 6/9/2008 or even filing of the Petition on 3/10/2008 has not been explained . 10] After going through the judgments cited by the learned counsel for the respondent-claimant it is apparent that the delay can be condoned irrespective of the fact whether notice is issued nor not. The judgments cited upon the learned counsel for the petitioner are on the provisions of Section 5 of the Limitation Act. Perusal of the reasons given in the application for condonation of delay, makes out sufficient 9 cause, which has been accepted by the learned Commissioner. The discretion exercised by the learned Commissioner cannot be said to be perverse or suffering from any infirmity. Hence, no interference is called for in the order impugned in this petition. It is however, necessary to note that from 12/11/2009 the respondent employee has filed the pursis that he is ready to waive the interest for the period from 17/8/2003 to 6/9/2003. The said undertaking is accepted. In view of above, there is no substance in the Petition. Petition is dismissed. Rule discharged. No order as to costs. It is however, made clear that the Commissioner while deciding the Claim Petition shall take into consideration the undertaking given on 12/11/2009 in the pursis filed in the Petition. [R. K. DESHPANDE, J.] umg/wp4696-09