Gurubachansingh S/O Kartarsingh ... vs Mukatarsingh S/O Butasingh
2004 Latest Caselaw 814 Bom

JUDGMENT

Anoop V. Mohta, J.

1. This appeal has been preferred by the original applicants/appellants herein, thereby challenged the Judgment dated 11.6.1985, passed by the Commissioner, under Workmen's Compensation Act, Yavatmal (for short 'the Commissioner'), in W.C. Case No. 13 of 1984, whereby the application under Section 4 of the Workmen's Compensation Act, (for short 'W.C. Act') itself was dismissed, basically on the ground of delay, as contemplated under Section 10 of the W. C. Act.

2. Heard, Mr. A. A. Naik, the learned Counsel appearing for the appellants. None appeared for the respondent inspite of service. The respondent (original non-applicant) was ex parte even before the Commissioner.

3. An application under Section 4 of the W. C. Act, dated 25.7.1984, was preferred by the appellant before the Commissioner, and prayed for award of Rs. 50,000/- towards compensation. The applicants are father and mother of Jagbindarsingh, who died in an accident on 24.1.1982 in village Umari, District Yavatmal. The original non-applicant is a transport contractor. The truck was owned by him. The deceased was in the employment of the non-applicant/respondent. The salary of the deceased at about Rs. 450/- per month, apart from the T. A. and D. A. and other benefits as per the prevailing custom in the transport line.

4. There is a specific averments made in the application under Section 4 of the W. C. Act, that because of the wrong advice, the applicants had filed application before the Accident Claims Tribunal, earlier, however later on it was adviced that such application for such compensation should be filed before the Commissioner, and not before the Accident Claims Tribunal. Therefore, on this extreme advice, they filed application under s, 4 of the W. C. Act, dated 25.7.1984, with a specific averments in para Nos. 11 and 12, to that effect. The applicants had also prayed for condonation of delay if any, in filing such application. The reference was made to Section 10 of the W. C. Act, which provides the power to the Commissioner to condone the delay, if any, and/or if sufficient cause is shown. There was no denial and/or opposition and/or written statement to this averment and/or this application, and the non-applicant was ex parte. No. other party appeared and opposed the said averment. The applicants lead their evidence and made out the case, in so far as the delay is concerned, which is as follows : "This proceeding is filed late because already proceeding was started before Motor Accident Claims Tribunal, Yavatmal. As I came to know that the proceeding to be instituted before the Commissioner of Workmen's Compensation Act on 6.8.84, hence this proceeding is filed late." There is no cross-examination to this, as the non-applicant was ex parte. There was basically no challenge to the merits of the claim as raised.

5. The Commissioner, however, by the impugned order rejected the total claim of the applicants. Therefore, this appeal.

Point for determination :

(i) Whether there was sufficient cause or reason made out by the applicants for condoning the delay in claiming compensation under Section 4 read with Section 10 of the W. C. Act, especially when the non-applicant remained ex parte?

6. The learned Counsel Shri A. A. Naik, appearing for the appellants read the provisions of Section 10, Sub-clause (b), which reads as under :

(b) ...

Provided further that the 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 subsection, if he is satisfied that the failure so to give the notice or (prefer) the claim, as the case may be, was due to sufficient cause.

He basically contended that there is ample power provided under the Act, whereby the Commissioner, can if case is made out, or sufficient cause is shown for condoning the delay, while considering such application for award of compensation under the W. C. Act. In the present case, the reasons were made out, specifically stated in para Nos. 11 and 12 of the application dated 25.7.1984. The evidence was led accordingly. There was no opposition from any party. The non-applicant remained ex parte. Even in the appeal, inspite of service, the non-applicant remained ex parte. In view of this, there was no reason to disallow the application filed by the applicants before the Commissioner.

The fact that there was a death and the applicants lost their son. Under such circumstances, wrong advice cannot be a reason to disallow the claim of the applicants. The applicants in any case could not have been benefited by such delayed filing. Filing of earlier application as referred, on the wrong advice and/or whatever may be the advice, parties have acted accordingly. Bonafide believed the advice given by the Advocate. Therefore, such applicants should not have been denied the right of the compensation which is otherwise available under the W. C. Act.

The fact of accident, death and the employment, if not disputed, the reason for non granting such compensation on the basis of delay, in my view Js unsustainable.

7. The learned Advocate, basically relied on : M/s. Concord of India Insurance Co. Ltd. v. Smt Nirmala Devi and Ors. . The relevant para is reproduced as under :

6. .,

I am of the view that, legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on question of law by Courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are. may legitimately lean on expert Counsel in legal as in other departments, without probing the professional competence of the advice. The Court must of course, see whether in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given must be treated as sufficient cause when an application under Section 5 of the Limitation Act, is being considered. The State has not acted improperly in relying on its legal advicers.

(2) Ghasi Ram and Ors. v. Chait Ram Saint and Ors . The reliance is on the following sentences :

10. ...Plaintiff appellant's revision was entertained for hearing by the High Court and that gave expectation to the plaintiff appellant that order of the executing Court may be set aside and further there was no inordinate delay in filing the suit under r, 103, If on examining the facts, it is found that there was no Jack of due care, there is no reason why the plaintiff appellant should not be accorded the benefits of Section 14 of the Act. Does the interest of justice demand that plaintiff should be refused benefit of Section 14 of the Act. Does the interest of justice demand that plaintiff should be refused benefit of Section 14 of the Act on account of negligence on the part of his Counsel, ill-advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill-adviced by his Counsel. On the facts and circumstances of this case, we are satisfied that the plaintiff appellant prosecuted the earlier civil proceeding in good faith.

8. As referred above, Section 10, itself provides power to the concerned! authority to condone the delay, if sufficient cause is made out. In my view, such discretion should be exercised in favour of the applicant and/or sufferer. In the present case, admittedly there is no opposition from any side to the contentions raised as well as averments made by the applicants. In this circumstances, the learned authority ought not to have rejected the claim petition of the applicant on merit, and compensation ought to have been awarded. In my view, there is sufficient reason made out by the applicants, and they are entitled for condonation of delay in filing such application under Section 4 of the W. C. Act, for grant of compensation as prayed., Applicants cannot be said to be disentitled to claim such compensation, merely because of wrong advice and/or bonafide belief of those advice and/ or acted accordingly. Therefore, the application deserves to be allowed.

10. Even though there are observations, but on merit there is no sufficient reason given to consider the claim of the applicants, as claimed. Therefore, it is necessary to remand the matter for proper adjudication of the compensation based on material evidence placed on the record. Therefore remand is necessary in this matter.

11. In view of the above, the impugned order dated 10.6.1985, therefore is quashed and set aside. The application for condonation of delay filed by the applicants is allowed, and Commissioner is directed to decide the application for grant of compensation, filed by the applicants on merits, preferably within a period of three months from the receipt of this order.

12. The appeal Is allowed with costs.