t^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh. J. Miscellaneous Appeal No.684 of 2005 Mohd. Sadique versus » Idrish and another ORDER w Postfor VT-02-2006 ^^ y^s9^~ ^° ("'fi :-ti: i' 1: f HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'bleShri Dilip Raosaheb Deshmukh, J. Miscellaneous Appeal No.684 of 2005 Appellant Applicant Resppndents Non-Applicant Mohd. Sadique, aged 24 years, s/o Aminuddin, occupation Cleaner, r/o Village Basantpur, P.S; Basantpur, Tahsil Wadrafnagar, District Sarguja (C.G.) versus Idrish, S/o Mohammad, aged about 48 years, occupation Transporter, R/o Village Jarhi, Police Chouki Bhatgaon, P.S. Pratappur, District Sarguja (C.G.) National Insurance Co. Ltd., through Branch Manager, Branch Momin Mahal, Raipur (C.G.) Miscellaneous Appeal under Section SO^fthe Workmen's Compensatioh Act, 1923 Present : Shri D.N.Prajapati, counsel for the appellant. Shri Sushil Dubey, counsel for respondent No.1. Shri Raj Awasthy, counsel for respondent No.2. ORDER (Delivered on this V day of February, 2008) In this appeal by the employee, the following questions of law arise for determination: "(i) Whether without considering the application for condonation of delay, petition can be dismissed? (ii) Whether in absence of disability certificate, no compensation can be awarded?" (2) Brief facts are that on 10-11-2001, the appellant/claimant was employed as Cleaner and was travelling in the Truck No.MP 23 B 6462 (henceforth 'the truck') driven by one Mohammed Farookh to Varanasi. Near Village But, District Mirzapur, the truck met with an accident with an on-coming truck. Mohammed Farookh died on the spot. The appellant/claimant sustained grievous injuries. An application for compensation was filed on 22-01-2004 before the Commissioner for Workmen's Compensation, Labour Court, Ambikapur (henceforth 'the Commissioner'), which was registered as Case No.6/W.C.Act/2004 N.F. An application under Section 5 ofthe LimitationAct was also filed for condoning the delay in filing the application under Section 10 of the Workmen's Compensation Act, 1923 (henceforth 'the Act, 1923'). (3) Respondent No.l/employer, i.e. the owner of the truck was proceeded ex parte on 31-05-2004. The written statement was filed only by the respondent No.2/insurance company denying permanent disablement of the appellant/claimant due to the accident and also the liability to pay compensation. Reply to the application under Section 5 of the Limitation Act was also filed separately by respondent No.2/insurer. (4) Besides his testimony, the appellant/claimant examined Mohammed Yunus, A.W.-2 and Dr.V.K.Shrivastava, A.W.-3. No evidence was led by the respondent No.2/insurer. i M E—-#'-.a^d^.trri* ,.^^fft*AjtlA:L-i1 e^^y^^fts^. ^M^^t^tHtsfAtKa-.i^^t "^ i !*iaS.figgfci % •~<*»^"J' (5) By the impugned order dated 08-04-2005, the Commissioner dismissed the application on two counts. Firstly, because the claimant had failed to prove that he had suffered disablement due to the accident, and his monthly income or age at the time of accident and lastly, on the ground that the application under Section 10 of the Act, 1923 was barred by limitation as it was not filed within two years from the occurrence of the accident. The Commissioner completely overlooked and did not consider the application under Section 5 of the Limitation Act. (6) Shri D.N.Prajapati, learned counsel for the appellant/claimant argued that the Commissioner erred in dismissing the application on the ground of limitation without considering the application under Section 5 of the Limitation Act. It was further argued that the application under Section 10 ofthe Act, 1923 ought not to have been dismissed on the sole ground that the appellant/claimant had failed to prove that he had suffered any disablement due to the accident. (7) Shri Sushil Dubey, learned counsel for respondent No.1 and Shri Raj Awasthy, learned counsel for respondent No.2 argued in support ofthe impugned order. (8) Having considered the rival submissions, 1 have perused the record. In the present case, the appellant/claimant served a notice as required by Section 10 of the Act, 1923 on the employer on 11-11- 2001. Under Section 10(1) of the Act, 1923, one of the conditions before a claim for compensation could be entertained by the \ ^ Commissioner is that the claim should be preferred within hwo years of the occurrence of the accident or in case of death within two years from the date of death. Under the fifth proviso to sub-section (1)of Section 10 of the Act, 1923, the Commissioner is empowered to entertain and decide any claim to compensation in any case notwithstanding that the claim has not been preferred in due time as provided in sub-section (1), if he is satisfied that the failure to prefer the claim was due to sufficient cause. The appellant/claimant had filed an application under Section 5 of the Limitation Act for condonation of delay in preferring the claim after the occurrence of the accident. The Commissioner did not consider the said application, which was duly supported with an affidavit and proceeded to dismiss the claim under Section 10 ofthe Act, 1923 on the sole ground that it was preferred beyond two years from the occurrence of the accident. The impugned order of dismissal of the claim, as barred by limitation, is, therefore, erroneous. Question of law No.(i) is answered accordingly that the Commissioner ought to have considered the application for condonation of delay and passed a speaking order before dismissing the claim on the ground of delay. (9) Under Section 3 of the Act, 1923, one of the situations under which an employer is not liable to pay compensation in accordance with the provisions of Chapter II of the Act, 1923 is in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days. In the present case, the employer did not file written statement and was proceeded ex parte. Therefore, in order to claim compensation, the claimant was required ..<S;!SL {fi-'S- /y .^s ':s:cas to establish that the injury sustained by him in the accident resulted in total or partial disablement for a period exceeding three days. In the present case, no disablement certificate was filed. Dr.V.K.Shrivastava, A.W.-3 testified that X-ray report not having been filed by the claimant, he was unable to depose whether the claimant had sustained any grievous injury. He also stated that the claimant did not follow his advice and left the hospital of his own accord. He deposed that he does not remember as fo what was reported in the X-ray of the claimant and that he had not issued any disability certificate to the claimant. The appellant/claimant also admitted in cross-examination that he had not filed any disability certificate or the papers of treatment. The discharge ticket Ex.P-1 also did not mention the details of the nature of injury sustained by the claimant. The claimant also admitted that he was performing his daily routine in the same manner as before. It is, thus, clear that the claimant was unable to establish that he had sustained any injury, which had resulted in total or partial disablement for a period exceeding three days. In this view of the matter, the claim petition was rigbtly dismissed by the Commissioner. (10) The question that arises for determination is whether in the above situation, it would be proper to remit the matter to the Commissioner for considering the application under Section 5 of the Limitation Act filed by the appellant/claimant. 1 find that in the application under Section 5 of the Limitation Act filed by the appeltant/claimant, there is absolutely no good ground for condoning the enormous delay in making the claim under Section 10 of the Act^ Si-'t"a"i<!«Si '-^. '""'';• ;b,'?•-.-'• .„ "~^--^,^' ^ 1923 because the only ground taken in the application is that after the accident dated 10-11-2001 till 20-01-2004, the claimant repeatedly made efforts to seek compensation from his employer/respondent No.1. However, this could not be a good ground for condonation of delay, as it does not show that despite due diligence the appellant/claimant was prevented by sufficient cause from filing the claim within time, i.e., within a period of two years from the occurrence of the accident. Thus, the application under Section 5 of the Limitation Act also does not disclose any ground for condonation of the delay. Therefore, remitting the case to the Commissioner would serve no useful purpose because even on merit the claim has been rightly rejected by the Commissioner. (11) In this view of the matter, the appeal fails and is accordingly Dilip Raosaheb Deshmukh Judge Z7-02-2008 Gopal