Judgment:
G.C. Gupta, J.
1. This is employer's appeal under Section 30 of the Workmen's Compensation Act, 1923 (her einafter referred to as the Act) against the award dated 27-9-1984 passed by Commissioner for Workmen's Compensation, Jabalpur in Case No. 44 of 1982 (fatal) and also order dated 30-4-1986 passed by the same Commissioner in Case No. 4/85 (non-fatal).
2. Respondent Kalasia Bai claiming to be widow of one Lakkhoo, son of Hori, a wagon loader at Hirdagarh Siding of Western Coalfields Ltd., filed an application on 22-6-1982 before the Commissioner alleging that her husband Late Shri Lakkhoo, while working as a wagon-loader developed pneu-moconiosis and subsequently died of the same on 11-7-1980 at T.B. Sanatorium, Chhindwara. She further claimed that since the death of deceased Lakkhoo was because of an occupational disease, she was entitled to a sum of Rs. 25,000/- as compensation under the Act. The appellant was summoned and filed their written statement on 23-8-1982 and submitted that deceased Lakkhoo was employed as a casual wagon loader and did not suffer from pneumo-coniosis as alleged. They, therefore, denied their liability to pay any compensation. It appears that on 23-8-1984 the appellant and their counsel were absent and, therefore, the hearing of the case was adjourned to 26-9-1984 at Chhindwara. On 26-9-1984, the appellant and their Advocate remained absent and, therefore the order of compensation was passed. It further appears that the appellants did not care to appear before the Commissioner even thereafter and it was only on 20-9-1985 that an application to set aside the order dated 27-9-1984 was filed. The Commissioner found no substance in the application and dismissed the same by the impugned-order dated 30-4-1986. That is how the two order have been challenged in the present appeal.
3. The objection of the learned counsel for the respondent is that no appeal under Section 30 of the Act lies against the order refusing to set aside the ex-parte order. A plain reading of section 30 or the Act would indicate that the objection taken by the respondent is substantial. This Court, however, does not consider it necessary to finally decide this matter as in the opinion of this Court, it would be entitled to give benefit of time taken in prosecuting the application for setting aside the ex parte order and to that extent condone delay in filing the appeal against the original order, while exercising its powers under Sub-section (3) of section 30 of the Act. If an ex parte order has been passed against an employer and he has the remedy of getting that order set aside by filing an application under Order 9 Rule 13 Civil Procedure Code read with Rule 41 of Workmen's Compensation Rules, 1924, there is no reason why on his failure to get the order set aside, he should not be able to challenge the award on merits. Denying such an employer the remedy of appeal would be patently unjust and would, therefore be contrary to the purposes of the Act. In a civil case like this, section 14 of the Limitation Act would come to the rescue of such a person and give him benefit of the time spent in prose-cuting the application.
4. The submission of the learned counsel for the respondent is that even if the period from 20-9-1985 till 30.4.1986, i.e., the time spent by the appellant in prosecuting their application under Order 9 Rule 13 Civil Procedure Code is excluded, the appeal against the original order dated 27-9-1984 would be barred by limitation. The submission is prima facie correct. Application for setting aside the ex parte order was filed after one year of the original order and the Commissioner has found no justification for condoning the said delay. In the instant case, however, an application for condonation of delay in filing this appeal (I.A.No.5178/86) has also been filed, from which it appears that some Sharma Advocate had informed Shri V.V. Bhave, Advocate that the claim of the respondent was dismissed and that was the reason why learned counsel for the appellants was misled and did not attend the case before the Commissioner. This fact was also stated in the application dated 20-9-1985 filed before the Commissioner, which was duly supported by affidavit of Shri V.V. Bhave, Advocate. The respondent has filed her reply to the application for condonation of delay and has admitted about the enquiries made by Shri Sharma, Advocate. The nature of the enquiry made by Shri Sharma, Advocate, however, has been denied. Be that as it may, this sufficiently indicates that because of some information given by Shri Sharma, Advocate, Shri Bhave, Advocate was misled and made no efforts in the matter. It is well-settled that the mistake or negligence of a counsel by itself is not accepted as sufficient to impose a heavy penalty like denial of right of appeal to a litigant. There is no allegation that Shri Bhave was not informed, as alleged. Under the circumstances, this Court accepts the ground as sufficient for condoning delay in filing the appeal.
5. The submission of the learned counsel for the appellants is that even if the appellants were absent, it was the obligation of the learned Commissioner to be satisfied about the correctness of the claim and only then pass the award. According to the learned counsel, evidence on record only pointed to the fact that deceased Lakkhoo died of pulmonary tuberculosis. There is no evidence, whatsoever, to indicate that he died of pneumoconiosis. In spite of it, it is clear that there was evidence that deceased Lakkhoo was employed as a wagon loader and died of pulmonary tuberculosis at T.B. Hospital, Chhindwara. Section 3 of the Act requires an employer to pay compensation only if a workman contacts an occupational disease peculiar to the employment, as required by Sub-section (2) thereof. It is only when conditions under Section 3(3) are satisfied that a claim can be made under Section 10 of the Act Section 19 of the Act confers exclusive jurisdiction on the Commissioner to decide not only the liability but also the actual amount of compensation. Even when an approach is made to the Commissioner, the Commissioner is entitled to decide the same by following a procedure in accordance with the Act. This would indicate that, the Commissioner has no jurisdiction to award any compensation unless necessary conditions imposing the liability on an employer are found existing on the basis, of material on record. Indeed, this Court would think that the duty to examine the material and decide about the liability will have to be taken little more seriously when the Commissioner has decided to proceed in the absence of an employer. Under the circumstances, it must be accepted that even in those cases where an employer is not represented before the Commissioner, the Commissioner cannot award compensation except on the proof of facts sufficient to impose liability on him under Section 3 of the Act.
6. From the application made by the respondent before the Commissioner, it is clear that she claimed that her husband Lakkhoo died of pneumoconiosis, which he contacted while working as a wagon loader. The application also clearly indicates that he died at T.B. Sanatorium, Chhindwara on 11-7-1980. In support of this submission, the respondent had examined herself and had produced certificates from the Civil Surgeon and Padhar Hospital (Exhibits P-1 to P-4). Yet another certificate from Patwari and Revenue Inspector dated 17-9-1982 (Ex.P-6) was also filed. That the respondent is an illiterate lady is clear from her affidavit filed in this Court. Under the circumstances, the entire case of the respondent mutt be presumed to be based on these certificates. Certificate from Civil Surgeon (Ex. P- 1) only indicates that Lakkhoo son of Hori was admitted in the Hospital for treatment of pulmonary tuberculosis on 8-7-1980 and died on 10-7-1980. Padhar (Betul) Hospital where the deceased was earlier treated would indicate that the deceased was admitted in the Hospital for treatment of pulmonary tuberculosis on 8-6-1980 and discharged on 3-7-1980 (Ex. P-4). The admission Certificate (Ex. P-2) also indicates that the deceased was suffering from pulmonary tuberculosis. Even Patwan and Revenue Inspector's death certificate states that the deceased died of tuberculosis. The learned Commissioner has read these certificates in the context of oral evidence of the respondent and had concluded that they establish that deceased Lakkhoo died of pneumoconiosis, which is an occupational disease. It is obvious that the learned Commissioner has not correctly read these certificates. In case he had read these certificates, he would not have concluded that the deceased Lakkhoo died of pneumoconiosis. Except for allegation in the application and perhaps the oral statement of the respondent, there is nothing on record to indicate that the deceased died of pneumoconiosis. According to M.P. Workmen's Compensation (Occupational Disease) Rules, pulmonary tuberculosis has to accompany coal miners' pneumoconiosis in order to entitle a workman to claim compensation. There is no such finding nor there is any material to record such a finding. Under the circumstances, this Court has no hesitation in holding that the conclusion recorded by the learned Commissioner that the deceased died of pneumoconiosis is a perverse conclusion. Since the said conclusion is based on misreading of certificates, the said conclusion must be held to be challengeable under Section 30 of the Act. Under the circumstances, this Court is not able to sustain the impugned order, as in the opinion of the Court, the deceased died not of pneumoconiosis, but of pulmonary tuberculosis.
7. Can the award of compensation be sustained because of the disability developed by the deceased on account of tuberculosis? Section 3 of the Act makes an employer liable to pay compensation for any personal injury to a workman caused by accident arising out of the and in the course of employment. It is admitted by the appellants that the deceased Lakkhoo was employed in 1975 as a wagon loader. In the absence of any material to show that he was suffering from tuberculosis at the time of his employment, it must be presumed that he was hale and hearty. There is also no dispute now that he was admitted in the T.B. Hospital and was under the treatment. These would sufficiently indicate that he developed tuberculosis while working as a wagon loader. A wagon loader's job is to load coal into railway wagons. This job is done either by lifting the coal from the heap in a basket to throw it into the wagon or pushing the coal into a shoot so as to load it in the railway wagon placed immediately below the shoot. These operations do involve working in an atmosphere full of coal dust. Dumping of coal on the ground, putting the same in the shoot or basket and throwing it into the wagon are operations, which usually spread coal dust in the area. A worker working in such an atmosphere can develop not only pulmonary tuberculosis, but also pneumoconiosis. Indeed, this Court feels that a worker working in such operations would really be suffering from coalminer's pneumoconiosis rather than pulmonary tuberculosis. It is unfortunate that facility for detection of this disease is not available in coal mining areas and, therefore it is diagnosed as pulmonary tuberculosis. Be that as it may, there is evidence on record to infer that the deceased suffered from tuberculosis while in employment and thereby became unfit for work. After suffering so, he was admitted in the hospital. Section 3(1) does not cover only those cases where external injuries are caused by accident, but covers even those cases where total or partial disablement is caused of an injury. The word 'injury' as used in the section is of wide connotation and would include a disease. Under the circumstances, all ingredients of section 3 are found existing in the instant case. This court is, therefore, of the opinion that deceased Lakkhoo suffered permanent total disability as a result of employment injury and became entitled to compensation under Section 3 of the Act. Section 4(1)(c)(ii) would be the proper section attracted in the instant case to determine the amount of compensation, as the injury of the type suffered by the deceased is not specified in Schedule I of the Act. Under the circumstances, the compensation payable to the respondent would be that proportion of the compensation for permanent total disablement as would be sufficient to meet the loss of earning capacity. There cannot be any dispute now that the deceased was earning Rs. 800/- per month. He would have, therefore, been entitled to a sum of Rs. 33,600/- for permanent total disablement. The learned Commissioner has awarded Rs. 25,000/- on account of death of the workman, which is not the correct calculation. In a case, where the death is subsequent to the disablement, it is disablement which determines the amount of compensation and not the death. Under the circumstances, the proper course should have been to ascertain the loss of earning capacity on the date the deceased became unfit for employment as a wagon-loader and, thereafter work out the actual amount of compensation. In case evidence on record indicated that the deceased had become totally disabled to do any work, the proper compensation to be awarded would have been Rs. 33,600/- and not Rs. 25,000/-. It is, therefore, clear that the learned Commissioner has committed a patent error in calculating the amount of compensation. The error, however, is to the benefit of the appellants and therefore, they can get no advantage of it.
8. The learned counsel for the appellants further submitted that there was no justification for imposing penalty of Rs. 3,000/-in the context of peculiar facts and circumstances of the case. The purpose of penalty is to secure obedience of law and ensure payment of proper compensation. The facts of the case do not indicate any culpable negligence on the part of the appellants. The deceased himself did not care to claim compensation. The compensation was claimed by the respondent a little before the expiry of period of limitation of two years from the death of the deceased and indicates that even the respondent was not clear about her right to claim it. In view of these peculiar circumstances, it is not a fit case far awarding any penalty. The impugned order, in so far as it imposes a penalty of Rs. 3,000/- is, therefore, set aside.
9. In view of the discussion aforesaid, the appeal fails on merits and is dismissed, except for the order on penalty. The respondent shall be entitled to costs of this appeal. Counsel's fee, Rs. 250/-.