IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A.No.3252/2017 (WC) BETWEEN:
Sri Shivappa S/o. Nijalingappa, Aged about 25 years, R/o. Yaradakatte, Hiriyur Taluk – 572 143 Chitradurga District ... Appellant (By Sri V.B. Siddaramaiah, Advocate) AND:
The General Manager R.K.Power Gen, Challakere Road, Hiriyur town – 572 143, Chitradurga District … Respondent (By Sri Ganapathy Bhat, Advocate) This MFA is filed under Section 30(1) of the Workmen’s Compensation Act, 1923, against the judgment and award dated 13.02.2017 passed in E.C.A.No.06/2014 on the file of the Senior Civil Judge and E.C.C., Hiriyur, dismissing the claim petition for compensation.
This MFA coming on for Admission this day, the Court delivered the following:
JUDGMENT The present appeal is filed by the claimant against the judgment and award dated 13.02.2017 made in E.C.A.No.06/2014 on the file of the Senior Civil Judge & E.C.C., Hiriyur, dismissing the petition filed by the claimant under Section 22 of the Workmen’s Compensation Act, 1923.
2. It is the case of the appellant that he was an employee under the respondent working as a labourer. On 08.04.2004 while filling fuel to the machine, jalary was removed and to avoid piece of wood his right leg struck into machine belt. As a result he sustained grievous injuries and fracture and incurred Rs.10,000/- as medical expenses. It is contended that he was hale and healthy prior to the accident and has lost earning capacity. Therefore, claim petition came to be filed before the Tribunal for compensation. In response to the notice, the respondent filed objections denying jural relation of employer and employee and sought to dismiss the claim petition.
3. Based on the pleadings, the Tribunal framed the following issues at paragraph No.4 of the claim petition which are as follows:-
“1. Whether the petitioner proves that, he was workiing as a labour under the employment of respondent as on the date of accident ?
2. Whether the petitioner proves that, he sustained grievous injuries while putting fuel to the machine, jalary was removed and to avoid piece of wood his right leg struck into machine belt accident caused on 08.04.2004 at 5.00 a.m at R.K.Power Gen, Challakere Road, Hiriyur Town and it is during the course of employment with respondent No.1 ?
3. Whether the petitioner is entitled for the compensation ?
4. What Order or Award?”
4. In order to prove the case, the claimant examined himself as PW.1 and marked documents as Exs.P1 to P4. The respondent examined Deputy Manager as RW-1 and no other documents were produced and marked.
5. The Tribunal considering the entire material on record has recorded findings that the claimant failed to prove that he was working as a labourer under the employment of the respondent as on date of the accident and also failed to prove that he had sustained grievous injuries as on date of accident on 08.04.2004 and proceeded to reject the claim petition mainly on the ground that the claim petition was filed after a lapse of 10 years and has not explained the delay and therefore, rejected the claim petition. Hence, the present appeal is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri.V.B.Siddaramaih, learned counsel for the appellant contended that the impugned judgment and award passed by the Tribunal rejecting the claim petition on the ground of delay and latches is erroneous and liable to be set aside. He would further submit that the Tribunal failed to consider the material evidence on record resulting in gross injustice to the appellant and the Tribunal failed to notice that the claimant was earning monthly wages of Rs.6,000/-. He would further contend that Tribunal has proceeded to reject the claim petition without taking notice of Section 10(1) of Workman Compensation Act (for short ‘the Act’). Therefore he sought to allow the petition.
8. Per contra, Sri.Ganapathy Bhat, learned counsel respondent sought to justify the impugned judgment and award and contended that admittedly the accident occurred on 8.4.2004 and the petition came to be filed only on 19.10.2007 clearly barred by limitation in view of provisions of Section 10(1) of the Act. Therefore, the tribunal is justified in dismissing the claim petition.
9. Having heard the learned counsel for the parties, the undisputed facts are that the claimant has sustained fracture of both bones of right leg tibia and fibula on account of the accident that occurred on 9.4.2004 arising during the course of employment. Admittedly, the claim petition came to be filed by claimant on 19.10.2007 after lapse of more than 3 years. Therefore, tribunal taking into consideration of the provisions of 10(1) of the Act which reads as Under:
“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”;
has come to the conclusion that the claim petition filed by the claimant is barred by limitation and recorded a finding of fact which reads as under:-
“The present case is of the injury to the petitioner and it has occurred on 08.04.2004 and applying above Sec. it is ought to have been presented on or before 08.04.2006 but, it is presented on 19.10.2007. Therefore the petitioner has to explain why he was not able to present it within two years because it is saved under proviso to Section 10 giving discretion to the commissioner to entertain the petition. But in this case it is noticed that, the petitioner has filed the application under Section 5 of Limitation Act to condone the delay when the matter was posted for orders on merits. It is opposed by respondent. However as discussed above when petitioner has failed to prove the incident itself and the reason for delay is not sufficiently explained except saying illiterate is not acceptable. It is not the case that he discontinued the employment and there is no reason showing the grounds for the delay in preferring the petition within 2 years from the date of accident. Further he has not examined the doctor to say that he suffered any permanent or partial disability. Thereby in my opinion, the petition is not maintainable and as such petitioner is not entitled for compensation.”
Therefore, the petition came to be dismissed as barred by limitation and the same is in accordance with law. The appellant / claimant has not made out any grounds to interfere with the impugned judgment and award passed by Tribunal in exercise of power under the provisions of Section 30(1) of the Act.
10. For the reasons stated, above, the appellant has not made out any substantial question of law to admit the appeal. Accordingly, the appeal is dismissed at the stage of admission.
Sd/- JUDGE KPS/RS