B.U. Wahane, J.
1. This appeal is directed against the order dated February 10, 1982 passed by the Commissioner, under the Workmen's Compensation Act at Nagpur, in W.C.A. No. 18 of 1978, dismissing the application filed by the appellant/worker, on the ground that it is time barred. Heard Shri Dharmadhikari, the learned Counsel for the appellant. None present for the respondent.
2. It is not disputed that the appellant Narsayya Ashanna was working with the respondent - Tata Robins Frazer Limited, as Khalashi on monthly wages of Rs. 240/-. On March 11, 1974, he met with an accident while he was in the employment of respondent. He was admitted in the Medical College and Hospital, Nagpur, by the respondent, for treatment and he was there till October, 1977. The appellant was under treatment from time to time and ultimately on October 14, 1977, Dr. Marwha, Professor of Surgery of the Government Medical College & Hospital, Nagpur, issued a certificate, certifying him fit to resume duties and also to the effect that he has been disabled to the extent of 40 per cent. The applicant in his own evidence stated that his disability is total and absolute and is also permanent. He has stated that he is unable to stand even for half an hour. He has stated that he was working as a Khalashi and is required to do the manual work. Dr. Marwha has stated that the applicant may be able to do the duty of the watchman by sitting and has also stated that the applicant cannot stand even for half an hour. Keeping in view the evidence and the nature of the injury, the learned Commissioner opined that the disability shall have to be taken as a total disability of permanent nature. The appellant, therefore, informed the respondent, i.e. his employer, by an application dated October 19, 1977, to permit him to join his duties and also to settle his claim for compensation. However, by reply dated October 31, 1977, the respondent denied his liability to pay any compensation.
3. The learned Commissioner has dismissed the application of the applicant on the ground of limitation. He has not filed the application within the prescribed period. So also he failed to explain the delay of four years during which he was undergoing treatment and also another period of four months from the date of issuance of fitness certificate dated October 14, 1977 by Dr. Marwha, till the date of filing of the application, i.e.February 24, 1978. It is an admitted fact that the appellant had received a compound fractures of the left tibia and fibula bones. Dr. Marwha specifically stated that the applicant had a fracture in his left tibia and the injury was a compound one,' resulted in a disability of the permanent nature. The appellant was first operated in the year 1974 and again in the year 1976 and lastly, he was under the treatment till October 24, 1977. On behalf of the respondent, a reliance was placed on a case Sitaram Ramcharan and Ors. v. M.N. Nagrashana, Authority under the Payment of Wages Act for Ahmedabad Area, Ahmedabad and Ors. : (1960)ILLJ29SC and submitted that the appeal is to be dismissed as the appellant has not shown sufficient cause for not making the application during the period of his first operation in 1974 and the second operation in the year 1976. In the case referred (supra) Lordships of the Supreme Court observed as under:
'The second proviso to Section 15(2) is in substance similar to the provision in Section 5 of the Limitation Act. It cannot be disputed that in dealing with the question of condoning delay under Section 5 of the Limitation Act the party has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay. Therefore, the contention that if sufficient cause has been shown for not making the application within the period of six months prescribed by Section 15(2), then the application can be made any time thereafter, is not correct.
Held on the facts that the failure of the applicants to establish sufficient cause for the delay in filing their applications under Section 15(2) after the expiry of the period of limitation was fatal to their claim.'
4. Shri Dharmadhikari, the learned Counsel for the appellant/applicant, submitted that the appellant met with a serious accident and practically lost his two legs and became a permanently disabled person who was unable even to stand for half an hour. Practically he has become beggar and destitute, and intermittently he was under the treatment of experts like Dr. Marwha. The circumstances did not allow him to move here and there including to approach the learned Commissioner for grant of compensation. Whatever may be the delay, but, in fact, it cannot be a delay deliberate on the part of the appellant, as approaching the Commissioner was in fact in his interest. The learned authority below dismissed his application merely on technical ground without considering various circumstances like continuous treatment from March 11, 1974 till October 14, 1977 when finally he was discharged from the hospital. Shri Dharmadhikari further submitted that dismissing the application on a technical ground without considering the circumstances which were not disputed even by the respondent/employer, is against the interest of justice. A reliance has been placed on a case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Kartiji and Ors. : (1987)ILLJ500SC in which Hon'ble Justice Thakkar observed as under (p. 501)
'In respect of condonation of delay, the Courts should adopt liberal approach and expressed the reasons for adopting such approach as:
(1) Ordinarily a litigant does not stand to benefit by leading an appeal late.
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.
(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.'
5. The sum and substance of the observations of their Lordships is nothing but the approach in respect of condonation of delay must be justice oriented one. Section 10 of the Workmen's Compensation Act, 1923, 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 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 tune as provided in this sub-Section, if he is satisfied that the failure to given notice to 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 had 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.
6. The order of dismissal of the application of the appellant, dated February 10, 1982 in W.C. A. No. 18 of 1978 is set aside and the Commissioner, under the Workmen's Compensation Act, 1923, at Nagpur, is directed to determine the claim of the appellant within a period of two months after due notice to the respondent. In the result, the appeal is allowed. No order as to the costs.