Patkar, J.:— In this case the widow of one Mahmed Ahmed Shaikh Mahiboo claimed compensation for the death of her husband who died as a result of an injury which he sustained while in the employment of the respondents. Various contentions were raised in the lower Court: (1) whether the applicant was a dependent; (2) whether the deceased workman received an injury as the result of an accident which arose out of and in the course of his employment, and whether the injury caused his death; and (3) whether notice was given as provided in Section 10 of the Workmen's Compensation Act, and whether if such notice was not given, the failure to give notice was due to sufficient cause. On the first two points the Commissioner decided in favour of the applicant. On the last point be held that there was no sufficient cause to prevent the deceased from going to the doctor and also informing his fore man, who was constantly on the ship, and therefore the failure to give notice was not due to sufficient cause. It appears that the deceased received an injury on 19th October, while he was doing work on the hatch of the boat “S.S Khandalla” and received an injury with the result that the nail was off the middle finger. He worked on for half a day and also at night on the 19th, and worked on the 20th at night, on the 21st he did not work, on the 22nd he worked during the day, on the 24th he worked day and night, on the 25th he worked during the day, and on the 26th he he worked at night, on the 27th he did not work, and on the 28th morning he got look-jaw and was removed to the hospital and died of tetanus at 9 a.m On 30th October, the applicant, the widow of the deceased, gave notice to the opponents claiming compensation for the injury received by the workman during the course of his employment, and on 21st November 1931 she filed an application before the Commissioner.
2. Under Section 10 of the Workmen's Compensation Act, a workman has to give notice of the accident as soon as practicable after the happening thereof. It is contended on behalf of the appellant that the notice given on 30th October was given as soon as practicable after the happening of the accident. In the alternative it is urged that if no notice was given of the accident, the failure to give notice was due to sufficient cause under prov. 2, S. 10(1). It appears clear from the evidence, and there is also the finding of the learned Commissioner, that the deceased appears to have worked of to the night of 26th October. He became ill on the 27th and was removed to the hospital on the morning of the 28th where he died at 9 a.m of tetanus. It is clear that the deceased did not give any notice of the accident, and it is difficult to hold that the notice given by the widow after the death of the workman on 30th October would be a notice of the accident. The question, however, for decision in this appeal is whether the failure to give notice was due to sufficient cause. It is contended on behalf of the appellant that a workman, when he receives an injury, is not bound to give notice till he realizes that he is entitled to compensation under the Act, and reliance is placed on the decision in the case of Albison v. Newroyd Mill, Ltd. (1), where a girl of 15, on 22nd January 1925, knocked some bobbins off the creel, one of which dropped on her nose causing it to bleed, but she continued at work after going to her superintendent, who wiped her nose, and her nose swelled and was treated by her mother and she did not leave work until 12th March 1925. It was held that notice to be given as soon as practicable must be given as soon as the workman realizes that his condition entitles him to compensation for injury by accident. The same view was taken in the case of Fenton v. Owners of S.S “Kelvin” (2). At p. 334 reference is made to the judgment of Buckley, L.J, in the case of Webster v. Cohen Brothers (3), where it was observed at p. 97 as follows:
We must distinguish between two different sets of facts: In the one the workman says: ‘If things continue as they are, I shall never require to give notice of any claim for compensation;’ that might be reasonable cause for not giving notice. The other state of facts is this: the workman says to himself: ‘I have had an accident, the results of which are serious, but I think they will alter for the better. I shall not give my employer notice of the accident, because if, as I hope, the results alter for the better, I shall never have to give notice of a claim for compensation at all.’ That is not reasonable cause for the failure to give notice of the accident.
3. The question therefore in such a case is whether the workman considers that he is entitled to compensation under the Act and whether he thinks that he shall never have to give notice of any claim for compensation because the injury which he has received is considered by him to be trivial. The same view was taken by Lord Dunedin in Ellis v. Fairfield Shipbuilding and Engineering Co. (4), referred to by Lord Sankey in Shotts Iron Co. v. Fordyce (5), where it is observed as follows (p. 509):
A man may have an accident, and honestly believe at the time that nothing serious has happened to him and therefore not conceiving that he has a good claim against his employer, makes no claim, but if it afterwards tarns out that he has made a mistake in fact and really has been injured, that may be…. reasonable cause for his not making the claim within the six months.
4. The learned Commissioner in this case considered that there was no evidence whatever that the deceased thought anything of the kind, namely, that the in jury was trivial, and that it was impossible for a Judge to draw inferences where there are no facts from which an inference can be drawn. He discarded the evidence of the witness Chunilal Shivraj that it was a trivial injury on the ground that according to the witness the deceased went to the doctor, but in the latter part of the judgment, he disbelieved the witness on the strength of the evidence of the doctor—Hormasji Dorabji Kapadya—and held that the deceased did not go to the doctor. If the Commissioner's view is right that the deceased did not go to the doctor it would support the inference that sit least in the opinion of the deceased the injury was trivial. The very fact that the deceased did work according to the finding of the learned Commissioner, up to the 26th night, shows that the deceased considered that the injury was trivial. If tetanus had not intervened and the man had not died on account of the effects of the tetanus, there is every possibility that the workman would not have made any claim for compensation, according to S. 3, sub-s. (1), Cl. (a), a workman is not entitled to compensation unless he is incapacitated for work for more than ten days, and it is difficult to hold that the deceased thought that he was entitled to compensation under the Act before the lapse of ten days after receiving the injury which he considered to be trivial. The learned Commissioner has not given effect to the finding in his judgment that the deceased worked up to the night of the 26th, that he became ill on 27th and was removed on the morning of 28th, to the hospital where he died at 9 a.m of tetanus. Having regard to the fact that the deceased was in the habit of doing hard work, and particularly to the fact that he is described as a gymnast, the slight injury that he received must have been considered by him to be trivial. The undisputed fact that he worked till the 27th is conclusive on the question that at least in the opinion of the deceased the injury was trivial and was such that he was not entitled to compensation under the Act. If that is so, the failure to give notice was in my opinion due to sufficient cause.
5. It is urged on behalf of the respondent that there is difference in the English Act and the proviso to S. 10, and that it is the Commissioner who must be satisfied that the failure to give notice or institute the claim, as the case may be, was due to sufficient cause. It was held in the case of Shotts Iron Co. v. Fordyce that the question whether the facts found by an arbitrator under the Workmen's Compensation Act, 1925, constitute reasonable cause for the failure of the injured workman to give notice of the accident or to claim compensation within the statutory period is a question of law. It would, therefore, follow that the Commissioner's decision on the question is open to review. When an appeal is provided under the Act, the appellate Court is placed in the same position as the Commissioner to decide whether on the facts found the failure to give notice was or was not due to sufficient cause. In the circumstances of the present case, I think that the failure to give notice by the deceased workman was due to sufficient cause within proviso 2, S. 10(1), and therefore the view of the learned Commissioner on this point is erroneous. The result therefore is that the appeal will be allowed. The order of the lower Court dismissing the application must be set aside, and the case must be sent down to the Commissioner for decision on the merits. Costs will be costs in the application.
Barlee, J.:— I agree. In this case the accident occurred on 19th October and no notice was given at all by the deceased. He continued to work in the oppondents' employment until the 26th and he died on the 28th at 9 a.m of tetanus. As he gave no notice the question whether notice was given as soon as practicable scarcely arises. The first question in this case is really whether his case comes within proviso 2 to Section 10, sub-section (1) of the Workmen's Compensation Act, that is to say, was the failure to give notice due to sufficient cause? The second question is have we jurisdiction in appeal to differ from the finding of the learned Commissioner which is that the appellant, the applicant before him, had not made out sufficient cause? On this question we have had a number of decisions cited to us, and with respect I would quote the words of Lord Chancellor Sankey in the case of Shotts Iron Co. v. Fordyce :
Once again I should like to protest against the great Dumber of cases which are so often cited upon this Act. I prefer to go back if possible to the words of the Statute and not to consider such words through a vista of decisions (p. 508).
6. Therefore I shall not refer to any cases except that which I have cited. The decision there was that it is sufficient cause for the failure to make a claim if the person injured has no idea that he can make any reasonable claim.
7. In the present case the deceased suffered an injury to a finger. It did not prevent him from going on with his work.
8. He did not think it necessary to go to the doctor. He continued to work for six or seven days, and finally it was not this injury which was the cause of his death, but tetanus, which one might call a latent injury of which he could not know or did not know. Now in dock work a workman must continuously suffer slight injuries, and unless we hold that it is necessary for men to notify every bruise or scratch, we must say that this man had sufficient cause for not notifying the trifling injury which he had suffered. He could not give notice of the danger for he had no knowledge of it. He had no knowledge of any such injury, one might say, as comes within the category of accidents for which a demand for compensation could conceivably be made. I am therefore of the same opinion as my learned brother that he I had sufficient cause for not notifying the injury to his finger. An appeal under S. 30 lies only when there is a substantial question of law. In this case I am of opinion that the learned Commissioner has erred in the exercise of his discretion, when deciding, whether there was sufficient cause, in that he has left out of account some of the most salient facts. He writes:
Mr. Joshi suggests that the deceased thought that the injury was so trivial that it was not worth bothering about … On this point there is no evidence whatever before me that the deceased thought anything of the kind and it is impossible for a Judge to draw inferences where there are no facts from which an inference can be drawn.
9. With respect, I think that the learned Commissioner has left out of consideration the evidence which is afforded by the conduct of the deceased that be thought his injury really trivial. Had he been troubled by it probably he would have gone to the doctor who, as the learned Commissioner says, was on the spot, and it is improbable that be would have attended to his work right up to the date of his death, which occurred some eight or nine days later. This is, an error which, in my opinion, entitles us to interfere in this matter, and I agree with my learned brother that the fair order is to give compensation, and that the case must now be remanded for a decision as to the amount.
R.K
10. Appeal allowed.