[Cites 10, Cited by 0]
Kerala High Court
The Regional Manager, Food Corporation ... vs Mohandas on 31 March, 2026
2026:KER:28793
M.F.A.(ECC)No.29 of 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 31ST DAY OF MARCH 2026 / 10TH CHAITHRA, 1948
MFA (ECC) NO. 29 OF 2023
AGAINST THE ORDER DATED 05.11.2022
IN ECC NO.59 OF 2017 (OLD No.9/2009) OF THE
EMPLOYEES COMPENSATION COMMISSIONER, (INDUSTRIAL TRIBUNAL),
THIRUVANANTHAPURAM
APPELLANT/OPPOSITE PARTY:
THE REGIONAL MANAGER,
FOOD CORPORATION OF INDIA,
REGIONAL OFFICE, KESAVADASAPURAM,
THIRUVANANTHAPURAM, PIN - 695004.
BY ADV SHRI.R.HARIKRISHNAN (KAMBISSERIL)
RESPONDENT/APPLICANT:
MOHANDAS
S/O NARAYANAN, TC 78/4011,
RESHMA BHAVAN, NEAR WIRELESS STATION,
BEACH P.O, THIRUVANANTHAPURAM, PIN - 695007.
THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON 24.03.2026, THE COURT ON
31.03.2026 DELIVERED THE FOLLOWING:
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M.F.A.(ECC)No.29 of 2023
2
[CR]
S.MANU, J.
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M.F.A.(ECC)No.29 of 2023
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Dated this the 31st day of March, 2026
JUDGMENT
The opposite party in ECC No.59/2017 on the file of the
Employees Compensation Commissioner, Thiruvananthapuram
has filed this appeal aggrieved by the order granting
compensation to the respondent for injuries sustained in an
accident during the course of his employment under the
appellant.
2. The respondent was employed as a paid headload
worker in a godown of the appellant. On 17.11.2007 at about
11:30 am, while he was loading rice bags, one of the bags fell
on his legs and he sustained fracture of both bones of both legs
leading to deformity of both lower limbs. He had to undergo
surgical procedures and treatment as inpatient. The application
for compensation was filed claiming an amount of
Rs.1,17,410/-.
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3. The respondent was examined as PW1 before the
Commissioner. On the side of the appellant RW1 and RW2 were
examined. Exts.A1 to A7 were marked on the side of the
respondent. Exts.B1 to B7 were brought on record by the
appellant.
4. The learned Commissioner, on appreciation of the
pleadings and evidence concluded that the respondent was
entitled for compensation and granted an amount of
Rs.2,62,216/- together with interest at the rate of 12% from the
date of accident till the realization. Cost was also awarded to the
respondent.
5. Though notice was issued there is no appearance for
the respondent.
6. Heard the learned counsel for the appellant. Perused
the impugned order as well as relevant records.
7. The learned counsel for the appellant raised two legal
issues as substantial questions of law involved in the appeal. He
contended that the learned Commissioner surpassed his
jurisdiction by granting a compensation of Rs.2,62,216/- as the
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claim of the respondent was only for an amount of
Rs.1,17,410/-. He argued that the Commissioner has no
jurisdiction to grant a compensation higher than that was
sought for by the claimant. However, this question is covered
against the appellant by the judgment of this Court in
Chairman and Managing Director, Kerala State Electricity
Board Ltd. v. Sudhish [(2026) KLT OnLine 1553]. It has been
held in the said judgment that the Commissioner has the
authority and duty to award just compensation even if the same
is higher than the compensation claimed. Hence, the first
substantial question of law raised by the learned counsel for the
appellant is answered against the appellant.
8. The next substantial question of law canvassed by
the learned counsel for the appellant is regarding want of a
notice as contemplated under Section 10 of the Employees
Compensation Act, 1923. He submitted that no notice was
issued to the appellant by the employee as provided under S.10.
However, the said contention was rejected by the learned
Commissioner holding that since there was mediation between
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the parties, the accident was well within the knowledge of the
appellant and hence the failure to issue notice is
inconsequential. He submitted that the opening words of Section
10(1) are unequivocal and no claim for compensation can be
entertained by the Commissioner unless notice of the accident
has been given. The learned counsel contended that the
Commissioner overlooked the mandatory nature of Section
10(1) and rendered a finding, that cannot be sustained in law.
He urged that for want of proper notice, the proceedings before
the learned Commissioner were not maintainable.
9. The relevant provisions of Section 10 are extracted
hereunder for ready reference: -
"10. Notice and claim.--(1)No claim for
compensation shall be entertained by a
Commissioner unless notice of the accident has
been given in the manner hereinafter provided as
soon as practicable after the happening thereof
and unless the claim is preferred before him within
two years of the occurrence of the accident or, in
case of death, within two years from the date of
death.
........................................................................
.......................................................................
Provided further that the want of or any defect or
irregularity in a notice shall not be a bar to the
entertainment of a claim--
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(a) if the claim is preferred in respect of the
death of a employee resulting from an accident
which occurred on the premises of the employer, or
at any place where the employee at the time of the
accident was working under the control of the
employer or of any person employed by him, and
the employee died on such premises or at such
place, or on any premises belonging to the
employer, or died without having left the vicinity of
the premises or place where the accident occurred,
or
(b) if the employer or any one of several
employers or any person responsible to the
employer for the management of any branch of the
trade or business in which the injured employee
was employed had knowledge of the accident
from any other source at or about the time when it
occurred:
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 sub-section, 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."
10. A close reading of Section 10 would show that though
sub-section (1) provides that no claim for compensation shall be
entertained by a Commissioner unless notice of accident has
been given in the manner provided in the latter parts of the
Section, the fourth proviso to sub-section (1) dilutes the rigour
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of the sub-section. Two different circumstances are covered by
clauses (a) and (b) under the fourth proviso wherein it has been
provided that want of or any defect or irregularity in a notice
shall not be a bar to the entertainment of a claim. It is relevant
to note the fifth proviso also in this regard. It has been provided
therein that the Commissioner may entertain and decide any
claim for 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 sub-section (1) if he is satisfied that the
failure to give the notice or prefer the claim as the case may be
was due to sufficient cause.
11. Proviso is a legislative tool often used to carve out
exceptions to the preceding provisions. Learned author
P.M.Bakshi in his "Interpretation of Statutes" describes the main
roles that can be properly assigned to the proviso in legal
drafting as follows:
(a) exclusionary,
(b) qualifying,
(c) clarificatory.
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In its exclusionary role, the proviso excludes something which
would otherwise fall within the main part of the statutory
provision. In its qualifying role, the proviso qualifies, or attaches
conditions to the proposition laid down in the main enactment.
In its clarificatory role, the proviso clarifies some doubt or
ambiguity which might possibly arise from the apparently elastic
phraseology of the main part.
12. In Romesh Kumar Sharma v. Union of India and
Others [(2006) 6 SCC 510], Hon'ble Supreme Court held as
under,
"12. "10. The normal function of a proviso is to
except something out of the enactment or to
qualify something enacted therein which but for the
proviso would be within the purview of the
enactment. As was stated in Mullins v. Treasurer of
Surrey [(1880) 5 QBD 170 : 42 LT 128] (referred
to in Shah Bhojraj Kuverji Oil Mills and Ginning
Factory v. Subbash Chandra Yograj Sinha [(1962) 2
SCR 159 : AIR 1961 SC 1596] and Calcutta
Tramways Co. Ltd. v. Corpn. of Calcutta [(1965) 3
SCR 354 : AIR 1965 SC 1728], when one finds a
proviso to a section the natural presumption is
that, but for the proviso, the enacting part of the
section would have included the subject-matter of
the proviso. The proper function of a proviso is to
except and to deal with a case which would
otherwise fall within the general language of the
main enactment and its effect is confined to that
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case. It is a qualification of the preceding
enactment which is expressed in terms too general
to be quite accurate. As a general rule, a proviso is
added to an enactment to qualify or create an
exception to what is in the enactment and
ordinarily, a proviso is not interpreted as stating a
general rule. 'If the language of the enacting part
of the statute does not contain the provisions which
are said to occur in it you cannot derive these
provisions by implication from a proviso. ...' said
Lord Watson in West Derby Union v. Metropolitan
Life Assurance Society [1897 AC 647 : 77 LT 284
(HL)]. Normally, a proviso does not travel beyond
the provision to which it is a proviso. It carves out
an exception to the main provision to which it has
been enacted as a proviso and to no other. [See
A.N. Sehgal v. Raje Ram Sheoran [1992 Supp (1)
SCC 304 : 1993 SCC (L&S) 675 : (1993) 24 ATC
559 : AIR 1991 SC 1406], Tribhovandas Haribhai
Tamboli v. Gujarat Revenue Tribunal [(1991) 3 SCC
442 : AIR 1991 SC 1538] and Kerala State Housing
Board v. Ramapriya Hotels (P) Ltd. [(1994) 5 SCC
672].
......................................................................."
13. Provisos are often employed by the legislature to
carve out exceptions to the general provisions. The rigour as
well as application of the main provision can be watered down
and varied by incorporating provisos. While understanding the
scope of a provision of a statute it should be read as a whole.
The impact of the main provision would be subject to what is
provided under the provisos if any.
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14. The rigour of sub-section (1) of Section 10 has been
ostensibly diluted by incorporating the fourth and fifth provisos.
In view of clause (b) under the fourth proviso, if the employer
had knowledge of the accident from any other source at or
about the time when it occurred, want of or any defect or
irregularity in a notice shall not be a bar to the entertainment of
a claim.
15. There are quite a few reported judgments of various
High Courts holding that the provisions of Section 10 regarding
the issuance of notice to the employer cannot be considered
indispensable. The said interpretation has been adopted in the
following judgments:-
1) C. Nanoo v. Mariamma Kuruvila and another
[1959 K.L.R. 47],
2) Bhagwandas v. Pyarelal [1952 SCC OnLine MP
34],
3) Chhatiya Devi Gowalin (Smt.) and another v.
Rup Lal Sao and another [1978 SCC OnLine Pat
58],
4) Divisional Supdt. Northern Rly., Moradabad v.
Umrao [1959 SCC OnLine All 261],
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5) Makhan Lal Marwari v. Audh Behari Lal [1958
SCC OnLine All 41],
6) National Insurance Company Ltd. v. Seema Devi
and Others [2020 SCC OnLine All 1954].
16. In the instant case, the learned Commissioner noted
that there was a mediation between the parties before the
application for compensation was filed. Therefore, the
Commissioner held that the accident was within the knowledge
of the appellant and hence want of notice was not a bar to
entertain the claim. The conclusion of the learned Commissioner
is perfectly valid in view of the fourth proviso to sub-section (1).
Once it is proved that the employer had knowledge of the
accident, the Commissioner need not reject the claim though no
notice regarding the accident was served on the employer.
Apparently, the purpose of the notice under Section 10 of the
Act is to bring the accident to the notice of the employer. Hence,
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the second substantial question of law raised is also answered
against the appellant.
In fine, the appeal fails. It is accordingly dismissed.
Sd/-
S.MANU
JUDGE
skj
