Judgment:
Deepak Gupta, J.
1. This appeal under Section 30 of Workmen's Compensation Act is directed against the award of the Commissioner, Workmen's Compensation, Kandaghat in Case No. 2 of 1997 decided on 30.11.1999.
2. When the appeal was admitted, no substantial question of law was framed. Therefore, at the time of hearing of the appeal, the following substantial questions of law are framed:
(1) Whether the Commissioner, Workmen's Compensation has erred in holding that there is no limitation for filing a claim petition under the Workmen's Compensation Act?
(2) Whether the claim petition is within limitation and if not, whether there are sufficient grounds for condoning the delay?
(3) Whether the claimants could be awarded interest and if so, from what date?
3. The brief facts necessary for decision of the case are that the deceased Kailash Chand was engaged as a driver with H.P. State Electronics Development Corpn. Ltd., Shimla. On 22.1.1987, he was driving a vehicle belonging to the Corporation which met with an accident. Kailash Chand died as a result of the injuries received in the accident.
4. Kailash Chand left behind his widow arid minor daughter. A petition for grant of compensation under the Workmen's Compensation Act was filed before the Commissioner, Workmen's Compensation, Kandaghat on 10.7.1997 more than 10 years after the death of Kailash Chand in the accident. No reasons were given in the application explaining the delay in filing the petition. When the insurance company took up the objections in its reply that the petition is time-barred, in rejoinder, the case set up by claimants was that after the amendment of 1995, there is no limitation provided under the Act.
5. The Commissioner for Workmen's Compensation framed issue No. 4 with regard to limitation. His findings are that in fact the Act provides no limitation. He also goes on to hold that since the claimants have been approaching the employer for compensation time and again his petition is within limitation.
6. Section 10 of the Workmen's Compensation Act reads as follows:
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:
xxx xxx xxxProvided 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.
It is clear that the limitation for filing the claim petition is two years and that the Commissioner under the Workmen's Compensation Act enjoys powers similar to that given to court under Section 5 of the Limitation Act for condoning the delay. Reference in this behalf may be made to Project Officer, Giddi A Colliery, CCL, Hazaribagh v. Sanjay Prasad Chaurasiya .
7. Mr. Ashwani Sharma contends that no ground has been mentioned in the application for condoning the delay and, therefore, the petition on the face of it is time-barred and should not have been entertained. He further submits that any evidence led which is not in consonance with the pleadings cannot be taken into consideration while deciding a case. He also relies upon the provisions of Section 7 of the Limitation Act and states that even though one of the claimants is a minor the bar of limitation shall apply since the claim petition has been filed by the natural guardian on behalf of the minor also.
8. On the other hand, Mr. Ajay Kumar, learned Counsel for the claimants has relied upon the provisions of Section 6 of the Limitation Act. It would be pertinent to quote the provisions of Sections 6 and 7 of the Limitation Act which read as follows:
6. Legal disability.-(1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.
(3) Where the disability continues up to the death of that person, his legal representatives may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in Sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.
7. Disability of one of several persons.- Where one of several persons jointly entitled to institute or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
Explanation I.-This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.
Explanation II.-For the purposes of this section, the manager of a Hindu Undivided Family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
9. Reading of Section 6 clearly indicates that where a person is entitled to institute a suit or make an application, the period of limitation in respect of a minor has to be reckoned from the date of attaining the majority. Section 7 provides that where one of the several persons entitled to file a claim petition is suffering from a disability and no discharge could have been given by a person who is in-charge of such person, time will run when the said person becomes capable of giving a discharge, i.e., attaining majority like in the present case. However, in case, the person who is the guardian or in-charge of the person suffering from a disability is entitled to give discharge then the limitation can run from the date of such discharge.
10. In fact in this case, there has been no discharge as such. Therefore, at the most it can be said that the natural guardian of the minor claimant has been negligent in prosecuting her claim. Even otherwise, in view of the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956, I am of the opinion that the natural guardian has no right to give up the claim of a minor except with the prior permission of the court. This is also in consonance with the provisions of Order 32, rule 7, Civil Procedure Code. Section 8 of the Hindu Minority and Guardianship Act reads as follows:
8. Powers of natural guardian.-(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court-
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of the minor or any person claiming under him,
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in Sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under Sub-section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of that Act, and in particular-
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in Sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, 'court' means the City Civil Court or a District Court or a court empowered under Section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.
11. Order 32, Rule 7, Civil Procedure Code reads thus-
7. Agreement or compromise by next friend or guardian for the suit.-(1) No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
(1-A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor;
Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the court from examining whether the agreement or compromise proposed is for the benefit of the minor.
(2) Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.
12. A conjoint reading of both these sections makes it amply clear that natural guardian of a minor has no right to discharge any person of his liability towards a minor except with the prior permission of the court. Therefore, taking any view of the matter, the case, as far as minor is concerned, has to be held within limitation.
13. As far as the major claimant is concerned, in my considered opinion, she has failed to make out any case for condoning the delay. Neither there are pleadings explaining the delay nor any evidence has been led in this behalf. Therefore, the claim petition is treated to be filed on behalf of the minor only.
14. As far as the question of quantum is concerned, there is no dispute with regard to the same. Interestingly, in this case the insurance company had itself first deposited a sum of Rs. 82,380 with the Commissioner for Workmen's Compensation, Kanda-ghat vide a demand draft No. 443750. This demand draft was sent in March 1998, after the employer had informed the insurance company that the accident had occurred and the employee had died in the accident. It appears from Exhs. X and Y that this demand draft was returned to the appellant insurance company on the ground that this may be endorsed to the Commissioner for Workmen's Compensation, Kandaghat instead of the Commissioner, Workmen's Compensation, Solan and that it should be filed personally or through an authorised agent. Some of the other objections raised by the Commissioner are untenable. In any event, this draft was returned. Thereafter, it appears that neither the insurance company nor the employer nor the claimants took any further interest in the matter and no amount was deposited. The claim was filed after ten years.
15. Mr. Ashwani Sharma urged that since the claim petition was filed after ten years and insurance company had shown its bona fide by depositing the amount even on the initial stage, the insurance company could not be fastened with the liability to pay the interest. He further submits that the interest could not be awarded at a rate of more than 6 per cent as prescribed under Workmen's Compensation Act when the accident occurred in the year 1987.
16. From the perusal of the entire record as well as the evidence on record, it is clear that the insurance company has deposited the demand draft in this case. Claimants have slept over the matter for about ten years and no explanation whatsoever has been given for the delay. In my view, the insurance company cannot be burdened with the liability to pay the interest for the period when the claimants slept over the matter. Further, it is now well settled that the rights of the parties get fructified on the date of the accident. In 1987 the maximum interest as provided under Section 4-A of the Act was 6 per cent per annum. Therefore, the claimants can only be awarded interest at the rate of 6 per cent per annum from the date of filing of the claim petition.
17. In view of the above discussion, the appeal is partly allowed. The claim petition filed on behalf of Geeta Devi, widow, is dismissed and the same is only held to be filed on behalf of Shivani, minor claimant. She is also held entitled to a sum of Rs. 82,380 along with interest at the rate of 6 per cent per annum w.e.f. the date of filing of the claim petition, i.e., 10.7.1997 till the date of deposit/payment of this amount. No costs.