U.C. Maheshwari, J.
1. This appeal is preferred under Section 30(1) of the Workmen Compensation Act, 1923, in short 'The Act' by the appellant-claimant being aggrieved by the order dated 18.11.2004 dismissing his claim under Section 10 of the Act.
The appellant-Claimant preferred his claim under Section 10 of the Act contending that he is working as employee of the respondent on the post of Mechanical Fitter in the Coal Mine of respondents at Sarani. On account of working in the coal mine because of its dust he suffered restrictive lung disease an occupational disease whereby he sustained 40% P.P.D. The medical certificate after his examination was also issued by the doctor posted at Medical College, Bhopal. The appellant's age was 43 years when he sustained the aforesaid disease and his salary was Rs. 3500/-. Such disease was sustained by the appellant while discharging the duties in the aforesaid coal mine under the employment of the respondent. Thus, they are liable to pay the compensation of it. With these pleadings the claim is preferred for the sum of Rs. 85,000/- along with the interest @ 18% p.a.
In reply of the respondents by admitting the employment of the appellant with them, it is denied that the appellant sustained such disease because of working in the coal mine by its dust. The assessment of 40% P.P.D. is also denied. The appellant's injury and the disease are denied. They were not aware about any incident causing such disease to the applicant. However, the quantum of the salary mentioned by the appellant is admitted by them. The application of the appellant is baseless and also barred by time. Thus, they are not liable to indemnify any claim to the appellant and prayed for dismissal of the application.
2. In view of the pleadings of the parties as many as five issues were framed and after recording the evidence, on appreciation the Trial Court by holding that the claim is barred by time and also that the alleged disease was not sustained by the appellant because of working under the employment of the respondent dismissed his claim in toto, on which the appellant has come to this Court with this appeal.
3. In pendency of the appeal the appellant also filed an application IA No. 4093/06 seeking permission to produce additional document on record. The same is to be considered in this appeal.
4. Having heard the learned Counsel, after perusing the record the following substantial questions of law require consideration in this appeal:
(i) Whether the finding of the learned Commissioner holding the claim barred by time is correct in the available circumstances or such finding is sustainable in view of proviso of Section 10 of the Act which empowered the Commissioner to entertain the claim under his discretion even on filing the same barred by the prescribed limitation? If so, has the Commissioner committed error in not invoking such discretion in favour of the appellant?
(ii) Whether the learned Commissioner committed error in dismissing the claim of the appellant without appreciating the admissible available evidence? If so, then it's effect.
5. So far first question regarding limitation is concerned, firstly I would like to reproduce the concerned abstract of Section 10 of the Act which reads as under:
10. Notice to 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 ...
(Provided ...
Provided ...
(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)--
(a) If the claim is (preferred) in....
(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 workman 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.
6. It is undisputed fact on record that the appellant being a mechanical fitter was working under the employment of the respondents and his monthly wages was Rs. 3500/- and his age was 43 years on the date of filing the claim. According to unrubutted deposition of the appellant he was working under the employment of the respondents even on the date of filing such claim. Such fact is not on behalf of the respondents in any manner. The proviso V provides 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 transferred in due time, 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.
7. It appears from the impugned order that in the view the aforesaid proviso the case has not been considered by the learned Commissioner with proper approach. It is apparent from the record that the appellant suffered the alleged occupational disease while working under the employment of the respondent.
8. Undisputedly it could be said that the Workmen's Compensation Act, 1923 is enacted (or the welfare of the workmen and to do the social justice with them. The law is well settled in this regard. The power vested in some authority by the statute should be invoked judiciously and with justice oriented approach and not otherwise. It appears from the medical evidence on the record that the appellant is sufferer of the occupational disease so called in the name of Pneumoconiosis. It is also called in the name of coal mine disease.
9. Looking to the nature of the disease of the appellant, I am of the considered view that even in the absence of any application by the claimant for invoking such discretion provided under the proviso of Section 10 of the Act the authority like the Commissioner ought to have entertained the claim by invoking such discretion in favour of the appellant to do the real justice with him in which it failed. The procedural rigor could not be tolerated in the way of justice. The procedures are always enacted and made to do justice with the victim or the sufferer. My aforesaid view is based on a decision of the Apex Court in the matter of Balaji v. Virendra Singh and Ors. AIR 2005 SC 1638, in which it was held as under:
10. In the matter of applicability of the procedural rigours the Constitution Bench of this Court in Sardar Amarjit Singh Kalra v. Pramod Gupta has observed that laws of procedure are meant to regulate effectively, assist and aid the object of substantial and real justice and not to foreclose even an adjudication on the merits of substantial rights of citizen under personal, property and other laws. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. It follows from tin: decision by the Constitution Bench that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice. The consolidated petition filed on 30.4.2003 by the petitioner would not be taken to be a new petition presented before the Central Registrar to declare it to be barred by limitation on the basis of its date of presentation; it shall have to be read in continuation of tin; earlier representations which were referred to the Central Registrar for adjudication under the orders of the Delhi High Court.
11. The matter can be looked from the other angle as well. Sub-section (3) of Section 75 of the 1984 Act authorises the Central Registrar to condone the delay in referring the dispute if the Central Registrar is satisfied that there was a sufficient cause for not referring the dispute within the period of limitation. The requirement of Sub-section (3) is the satisfaction of the Central Registrar for sufficient cause, and is not dependent on moving of an application for condonation of delay by the petitioner. Even without there being any application for condonation of delay, if the facts which emerge in the case are sufficient to satisfy the Central Registrar of the reasonable cause for not referring the dispute within the period of limitation, the Central Registrar can condone the delay in exercise of the powers conferred on him under Sub-section (3) of Section 75 of the Act.
10. The aforesaid dictum is applicable to the case at hand for condoning the delay but such aspect was not considered by the Trial Court while giving linciuu; on the question of limitation.
11. From the above it is apparent that the appellant even after sustaining the alleged occupational disease was in the service of the respondents even on the date of filing the claim. In such premises he had recurring cause of action and the continuous cause of action to file the claim. Besides this the disease of the appellant was remained in the knowledge of the respondents and its authorities long back from the date of filing the claim. Thus, in view of the aforesaid other proviso the claim could not be defeated on the ground of limitation.
12. Besides above for invoking the discretionary power to condone the delay in filing the claim sufficient cause must be construed liberally. Such question is answered by the Punjab High Court in the matter of Sarup Singh Sher Singh v. Makund Lal AIR 1960 Punjab 199 (V 47 C 39), in which it was held as under:
(7) In a welfare State which is being progressively industrialized, legislative measures like the Workmen's Compensation Act should be construed in a more liberal sense in favour of the workmen to that deserving workmen to get full and speedy benefit and advantage of these beneficial measures. Such liberal interpretation would accomplish the humane and beneficial purposes of this legislation, the provisions of which are truly responsive to the social and economic needs which have been recognized by our Society and by our Constitution. The rights of workmen deserve to be generously treated while applying the statutory provisions because the procedure under this statute provides a speedier similar, cheaper and more efficient machinery for the determination and payment of compensation to the workmen. Judicial and quasi-judicial officers should therefore not treat matter of procedure so rigidly as to deprive the citizens of the advantages and benefits of this beneficial legislation on unsubstantial and technical grounds. It is of I ho utmost importance that no construction on provisions relating to procedure should sacrifice the rights of the poor workmen due to technical mistake, omission or inaccuracies. Provisions relating to limitation have, as already noticed also to be construed with a liberal spirit so that, consistently, with the language of the statute, if interest of real justice can be promoted such a result should be sought to be achieved. I have, therefore, no hesitation in holding that the learned Commissioner was clearly wrong in law in finding the appellant's application to be barred by time. That I can determine this question on appeal has not been denied at the Bar, and rightly so, this appeal being a continuation of the original proceedings (see Union of India v. Hanskumar Kishan Chandra AIR 1958 SC 947 at paga 952.).
13. Such question is also answered till some extent by this Court in the matter of Lauki Devi and Ors. v. Sardar Garlal Singh and Ors. 1987 (1) T.A.C 420, in which it was held as under:
8. ...Insertion of this provision in the Act sufficiently established the anxiety of the legislature to see that the claim of a bona fide claimant is not defeated. The same intention is obvious from Section 10-B of the Act which obliges the employer to report to the Commissioner the circumstances attending death or serious bodily injury. The Act without doubt is a welfare statute and therefore interpretative process of this Court must bring out the contention of the legislature. The interpretation adopted by this Court in its opinion establishes the efficacy of this welfare legislation and thereby furthers, intention of the legislature.
14. On other occasion this question was answered by the High Court of Andhra Pradesh in the matter of N. Pochaiah and Co. v. Mulle Nagabhushaumn 1966 A.C.J. 361 in which it was held as under:
6. The Commissioner accepted the truth of these grounds and condoned the delay. At any rate, grounds (1) and (3) are very plausible. A workman in our country is not so literate and conscious of his rights as to rush to the Labour Commissioner for enforcement of his rights especially when the employer was promising to settle his claim. It may be remembered that the first injury was not a serious one. It was only a loss of index finger of the right-hand. There is also the further fact that he continued to be in service thereafter, till he was the victim of the second accident, which resulted in the loss of the left arm. Even thereafter, he continued under the same employer and he was paid, in spite of his physical disabilities, more wages than what he was getting previously. In those circumstances, it is very probable that he would not have though of starting legal proceedings, implicitly believing that his employer would also settle his claim. It is only when he was disillusioned that he filed his application under Section 10 of the Act.
15. Therefore, in view of the aforesaid discussion, it is held that the Commissioner has committed grave error in holding that the claim is barred by time and the first question is answered accordingly in favour of the appellant, the findings of the trial Court in this regard are hereby set aside. In such premises, the claim of the appellant is held to be entertainable to decide the same on merits.
16. Before giving any finding on the second substantial question of law relating to the merits of the appellant's case, I would like to consider the aforesaid IA No. 4093/06 filed by the appellant.
17. Coming to another question whether the alleged disease was sustained by the appellant because of working in the coal mine of the respondent, is concerned. After perusing the bed head ticket regarding treatment of the appellant and the other papers along with the different receipts of the hospital and the Summery Certificate Ex. P/1-C dated 11.4.1989 issued by the authority of Gandhi Medical College, Bhopal, I am of the considered view that the appellant sustained the alleged disease because of inhalation of coal dust due to his occupation hazards. As per aforesaid summery of the Gandhi Medical College, Bhopal the following conclusion was given:
In view of the above clinical parameters patient has a stable cardiovascular status. The existing symptoms are due to obstructive and restrictive airway disease partly due to smoking and mainly due to inhalation of coal dust due to his occupation. The disease is likely to increase if he continues to work in the coal fields. B-Blockers may be withheld in view of exiting pulmonary pathology. Alternatively the following treatment is recommended: -- Tab. Deriphylline retard 1 BD. Cap. Cardicap TK 20 mg 1 BD. Tab. 1 BD Tab. Isordil 5 mg SOS S/L.
18. Some other papers also prove this version, although such certificate and papers are rebutted by the respondents oil the basis of the papers prepared by the hospital of the respondents and also by their Board.
19. It is also stated by the Commissioner that against the order of Medical Board an appeal is provided under the rules but the appellant did not choose to file the same. Resultantly, the decision of the Medical Board has got finality and the same could not be challenged by the appellant by way of the instant claim. In this regard on making the queries to the respondents' Counsel she could not apprise me any rules in this regard, hence on account of such opinion or the conclusion of the Medical Board the claim of the appellant could not be defeated Even otherwise on account of such technicalities a sufferer of occupational disease could not be deprived from his right.
20. So firstly on the basis of available medical evidence, it is held that the appellant suffered the alleged occupational disease during his aforesaid employment and in the course of discharging his duty in the coal mine. A part from the above some additional, paper regarding medical examination of the appellant issued by the District Medical Board, Betul on 8.1.2006 is filed with the aforesaid IA which was not in existence and available with the appellant on the date of filing the claim or passing the impugned order, i.e. on 18.11.2004. Beside this the superannuation order of the appellant dated 31.7.2006 is also filed which has come in existence subsequent to the order of the Trial Court. So I am of the view that the aforesaid certificate of Medical Board requires consideration to decide the quantum of compensation. Hence by allowing the aforesaid IA such documents are taken on record.
21. In view of the aforesaid finding the substantial question No. 2 answered accordingly and in favour of the appellant and with the aforesaid findings the case is remitted back to the Trial Court with a direction that after extending the opportunity to the parties for amending their pleadings in view of aforesaid additional documents and giving them the opportunity to adduce the evidence in this regard and after hearing their arguments decide the quantum of compensation in accordance with law and procedure. It is expected that the Trial Court shall conclude such proceeding on or before 30th June, 2008 under intimation to this Court.
22. There shall be no order as to the cost.
The appeal, is partly allowed and the case is remanded to the trial Court to decide the same in compliance aforesaid directions.