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J. Hogan v. Gafoor Ramzan
Case Summary — Appeal from Ex-Officio Commissioner at Thana under the Workmen's Compensation Act
Factual and Procedural Background
This appeal concerns an order of compensation made by the Ex-Officio Commissioner at Thana under the Workmen's Compensation Act and turns on a point of limitation.
The claimant (a labourer employed by the opponent at sand and brick works at Mumbra) sustained an accident on 24 September 1929 resulting in the loss of his leg. The claimant remained in the employer's service on light duties after the accident (the opinion records that he was so employed up to about April or May 1930 in one passage and up to the end of June 1930 in another). He was dismissed thereafter, and formal claim proceedings were instituted in September 1931. Under section 10 of the Workmen's Compensation Act a claim for compensation should have been instituted within six months of the accident (i.e., by 24 March 1930), though the Commissioner has power to excuse delay for sufficient cause.
The Ex-Officio Commissioner found that the initial six-month delay (during which the claimant was working on light duties) was satisfactorily explained, but that the further delay from the time of dismissal (April/May or June 1930) until September 1931 was not satisfactorily explained. Despite that, the Commissioner excused the entire delay following the ruling of the Court of Appeal in Lingley v. Thomas Firth & Sons and allowed the claim. The employer appealed the Commissioner's order. On appeal the court considered (a) whether the claimant was a "workman" under the Act and (b) whether the claim was barred by limitation under section 10.
Legal Issues Presented
- Whether the claimant is a "workman" within the meaning of the Workmen's Compensation Act (as argued by the appellant).
- Whether the claim for compensation is barred by the six months' limitation prescribed by section 10 of the Workmen's Compensation Act, or whether the Commissioner properly excused the delay (including the later unexplained delay) by applying the Court of Appeal's ruling in Lingley v. Thomas Firth & Sons.
Arguments of the Parties
Appellant's Arguments
- The appellant argued that the Court of Appeal in Lingley limited its view by reference to the ordinary law of limitation; counsel contended that Article 22 of the Indian Limitation Act (one year for suits for damages for personal injury) operates to bar the present claim at the expiry of one year from the date of injury.
- The appellant (implicitly) contested that the claimant should be treated as a workman within the meaning of the Workmen's Compensation Act (this was raised in the appeal, though the judges rejected this contention).
Respondent's Arguments
- The respondent (and respondent's counsel) contended that the Indian Limitation Act applies to civil suits and not to proceedings under the Workmen's Compensation Act; therefore Article 22 does not govern limitation for proceedings before a Commissioner under the Act.
- The respondent relied on the claimant's employment on light duties for the initial six-month period as a satisfactory explanation for not instituting the claim within six months.
Findings / Position of the Commissioner (as reported)
- The Commissioner found that the initial six-month delay (while the claimant remained employed on light duties) was satisfactorily explained, but that the delay from the date of dismissal to the date of instituting the claim (April/May or June 1930 to September 1931) was not satisfactorily explained.
- Nevertheless, following Lingley v. Thomas Firth & Sons, the Commissioner excused the entire delay and allowed the claim.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lingley v. Thomas Firth & Sons [1921] 1 K.B. 655 | Holds that where reasonable cause is established for failure to make a claim within six months under the corresponding provision of the English Act, the bar to proceedings under the Act is removed and, subject to the ordinary statute of limitations, proceedings can be maintained at any time after the specified period. | The court followed Lingley: once a reasonable cause is established for failure to make a claim within six months, the bar under the Workmen's Compensation Act is removed and subsequent delay is immaterial. The court applied this to excuse the claimant's later unexplained delay. |
| Prophet v. Roberts (1918) 11 B.W.C.C. 301 | A contrary view to Lingley had been expressed in this authority (i.e., it took a different view on consequences of initial delay). | The court noted that the view in Prophet v. Roberts was dissented from and did not follow it; Lingley was treated as the authority to follow. |
| Hillman v. London, Brighton and South Coast Railway Co. [1920] 1 K.B. 284 | Eve, J. had expressed a view contrary to the view in Lingley on the effect of excusing delay. | The court observed that Eve, J.'s view in Hillman was not followed; the court adopted the reasoning in Lingley instead. |
Court's Reasoning and Analysis
The court's reasoning proceeds in several discrete steps, closely following the text of the opinion:
- Identification of the central issue: although the appellant raised the question whether the claimant was a "workman," both judges (Baker, J. and Divatia, J.) determined that the claimant fell within the statutory definition of "workman." Divatia, J. applied the definitions in the Indian Factories Act and schedule II of the Workmen's Compensation Act to the facts: sand was dredged and processed for sale/transport, the premises met the factory definition, and the claimant's activities fell within section 2(2)(d) of the Factories Act. Accordingly, the claimant was a workman under the Workmen's Compensation Act.
- Application of section 10 (limitation) of the Workmen's Compensation Act: the court recognized that section 10 prescribes a six-month period for instituting a claim (subject to the Commissioner's discretion to excuse delay for sufficient cause). The accident occurred on 24 September 1929; therefore the six-month period expired on 24 March 1930.
- Assessment of the delay and sufficiency of cause: the Commissioner found the delay during the first six months was satisfactorily explained because the claimant was employed on light duties and receiving the same pay — a sufficient reason for not instituting the claim within those six months. The Commissioner found the subsequent delay (from dismissal in April/May or end of June 1930 until September 1931) was not satisfactorily explained.
- Treatment of the English authority (Lingley): the court examined the Court of Appeal ruling in Lingley v. Thomas Firth & Sons, which interprets a provision in the English statute identical in terms to section 10. Lingley holds that if reasonable cause exists for failure to make a claim within six months, the bar is removed and proceedings can be maintained thereafter (subject to ordinary limitation). The court noted that contrary views (Prophet; Eve, J. in Hillman) had been dissented from.
-
Interaction with the Indian Limitation Act: the appellant advanced Article 22 of the Indian Limitation Act (one year for suits for damages for personal injury) as a potential bar. The court rejected applying the Indian Limitation Act to proceedings before a Commissioner under the Workmen's Compensation Act, reasoning that:
- The Workmen's Compensation Act ousts civil court jurisdiction (section 19) for matters required to be settled by a Commissioner;
- Proceedings under the Workmen's Compensation Act are not "suits" and the Act makes its own special provision for limitation (section 10 for original proceedings; section 30 for appeals); and
- The Indian Limitation Act's provisions are made applicable to appeals under section 30 by virtue of section 5 of the Limitation Act being made applicable to those appeals, but there is no reference requiring ordinary suit-limitation rules (like Article 22) to govern proceedings under section 10.
- Conclusion on excusing the later delay: applying Lingley and the view that section 10 governs limitation for these proceedings, the court concluded that once reasonable cause is established for the failure to make a claim within the initial six months (here, the claimant's continued employment on light duties), the bar to proceedings is removed and the subsequent unexplained delay does not prevent maintenance of the claim. Therefore the Commissioner's exercise of discretion in excusing the later delay was upheld.
Holding and Implications
Holding: The appeal is dismissed and the order of the Ex-Officio Commissioner allowing the claimant's compensation claim is upheld; costs were awarded against the appellant. (The opinion concludes: "Appeal dismissed." and both judges concurred.)
Implications:
- The court held that the claimant was a "workman" under the Workmen's Compensation Act on the facts of this case.
- The court ruled that limitation for proceedings before a Commissioner under the Workmen's Compensation Act is governed by section 10 of that Act; the ordinary suit-limitation rules of the Indian Limitation Act (e.g., Article 22) do not apply to such proceedings.
- The court followed the Court of Appeal in Lingley v. Thomas Firth & Sons and applied its principle that once reasonable cause is shown for failure to bring a claim within the six-month statutory period, the bar is removed and subsequent delay is immaterial for the purpose of section 10 (the judgment noted that Lingley is to be followed as the English and Indian provisions are practically the same).
- The opinion does not purport to establish a novel or divergent rule; it expressly follows the Lingley authority and notes that there does not appear to be any subsequent ruling to the contrary on that point.
- Direct effect: the claimant's compensation claim stands despite the later unexplained delay because the initial six-month failure was satisfactorily excused; the appeal by the employer is dismissed with costs.
Prepared solely from the provided opinion text. No information has been added beyond what appears in that opinion.
Baker, J.:—
This is an appeal against an order of compensation made by the Ex-Officio Commissioner at Thana under the Workmen's Compensation Act, and involves a point of limitation. The claimant, who was a labourer employed by the opponent at his sand and brick works at Mumbra, met with an accident on September 24, 1929, which resulted in the loss of his leg. The claim was made in September 1931, but it is in evidence that after the loss of his leg the claimant was employed by the opponent as a watchman up to about April or May 1930, when he was dismissed. Under section 10 of the Act the claim for compensation should have been instituted within six months of the occurrence of the accident, i.e, by March 24, 1930, though the Commissioner has power to excuse the delay for sufficient cause. The delay of six months is satisfactorily explained by the claimant's employment on light duties Page: 131on the same pay, but the Commissioner held that there was no explanation of the delay in making the claim from April when the claimant was dismissed, to September 1931, when the claim was made. But, following the ruling of the Court of Appeal in Lingley v. Thomas Firth & Sons, [1921] 1 K.B 655 he held that the delay must be excused.
This is the principle, and indeed the only, point in the case, although it has been argued in appeal that the claimant is not a workman within the meaning of the Act. It is clear, in view of the definition in the Act, that the claimant, who was employed in a works where sand was dredged from the creek and sifted so as to remove mud and stones, was a workman within the meaning of the Act. His ordinary duties were to spread sand in barges, but under the orders of the foreman he was with others employed on the day in question in turning pontoons so as to get the manholes upwards, the pontoons being required for the purpose of erecting a dredger on them for the purpose of removing sand, and in the course of this operation his leg was injured by one of the pontoons, resulting in its amputation. The only question, therefore, that arises in this appeal is whether the claim is barred by limitation by section 10 of the Act in view of the express finding of the Commissioner that the delay in making the claim from April 1930 to September 1931 is not satisfactorily explained.
Now on this point we have an express ruling of the Court of Appeal in England on the corresponding section of the English statute which is in terms the same as section 10. In Lingley v. Thomas Firth & Sons, [1921] 1 K.B 655 the Court of Appeal held that where reasonable cause is established within section 2, sub-section (1)(b) of the Workmen's Compensation Act, 1906, for failure to make a claim for compensation within six months of the occurrence of an accident which has occasioned injury to a workman, the bar to the maintenance of proceedings under the Act is removed, and, Page: 132subject to the ordinary statute of limitations, proceedings can be maintained at any time after the expiry of the specified period. The view which was expressed in Prophet v. Roberts (1918) 11 B.W.C.C 301 at p. 310 to the contrary has been dissented from; so also the view of Eve, J. in Hillman v. London, Brighton and South Coast Railway Co. [1920] 1 K.B 284 at p. 300 It has been argued by the learned counsel for the appellant that the learned Lord Justices of the Court of Appeal expressly stated that this view is subject to any bar that might arise under the general law of limitation, if there be any, as to which they expressed no opinion, and he contends that under Article 22 of the Indian Limitation Act the period of limitation for a suit for damages for personal injury is one year from the date of the injury, and he argues that the present claim would be barred at the expiry of a year under that Article. For the respondent it is argued that the Indian Limitation Act applies to suits and not to proceedings under the Workmen's Compensation Act. I think this contention is correct. Section 19 of the Act expressly ousts the jurisdiction of the civil Court in matters required by the Act to be settled by a Commissioner. Though section 23 empowers the Commissioner to exercise the powers of a civil Court under the Code of Civil Procedure for certain purposes, the Act nowhere says that the proceedings under the Act should be treated as a suit, or that the ordinary law of limitation has to be applied to them, and it makes special provisions for limitation in section 10 for the original proceedings, and in section 30 for appeals. The provisions of section 5 of the Indian Limitation Act, 1908, are made applicable to appeals under this section, but there is no reference to the Indian Limitation Act in section 10. There is, therefore, a clear distinction between proceedings under the Act, and civil suits, and a special period of limitation being provided by section 10, we are to be guided by that, and not by the general provisions of the Indian Limitation Act, and it Page: 133would be wrong to apply a period of limitation especially provided for suits to proceedings under the Workmen's Compensation Act. We must, therefore, be guided by section 10, and section 10 alone, which provides for six months' limitation, which can be extended by the Commissioner for sufficient cause. During the period of six months immediately following the accident the claimant was employed on light duties on the same pay by the employer—that is a sufficient reason for his not having made the claim within that period. And once a reasonable cause is established for failure to make a claim for compensation within six months of the occurrence of the accident, the bar to the maintenance of proceedings under the Act is removed under the ruling of the Court of Appeal in Lingley v. Thomas Firth & Sons. (1921) 1 K.B 655 There does not appear to be any subsequent ruling on this point, and as the corresponding section of the English Act is practically the same as that of the Indian Act, we should follow the ruling of the Court of Appeal.
The result is that the appeal fails and must be dismissed with costs.
Divatia, J.:—I concur. As to the respondent being a workman or not within the meaning of that term in the Workmen's Compensation Act, I do not feel any doubt. I think he is such a workman. Under schedule II of the Workmen's Compensation Act a person who is employed within the meaning of clause (2) of section 2 of the Indian Factories Act of 1911 in any place which is a factory within the meaning of sub-clause (a) of clause (3) of that section is a workman. Now, section 2, clause (2) of the Indian Factories Act is that—
“(2) a person who works in a factory, whether for wages or not,—
(a) in a manufacturing process or handicraft, or
(b) in cleaning any part of the factory used for any manufacturing process or handicraft, or
(c) in cleaning or oiling any part of the machinery, or
(d) in any other kind of work whatsoever, incidental to, or connected with, the manufacturing process or handicraft, or connected with the article made or other-wise the subject of the manufacturing process of handicraft therein,
shall be deemed to be employed therein.”
And a factory is defined in section 2, clause (3)(a) as—
“any premises wherein, or within the precincts of which, on any one day in the year not less than twenty persons are simultaneously employed and steam, water or other mechanical power or electrical power is used in aid of any ‘manufacturing process’,”
and section 2, clause (4), of the Indian Factories Act defines what a manufacturing process is. It means any process for or incidental to—
“(a) making, altering, repairing, ornamenting, finishing, or otherwise adapting for use, transporter sale, any article, or part of an article, or
(b) refining oil or pumping, or filtering water, or
(c) supplying, generating or transforming pneumatic, hydraulic or electrical energy, and includes the bailing of any material for transport.”
Now here it is found that in the works of the present opponent, where the applicant was engaged, sand was dredged from the bottom of the creek and separated from shingle and was then adapted for use and for sale and for transport. The dredging is done by the same power as used in the dredgers working in the premises of the works. This would show that the premises are a factory within the meaning of section 2, clause (3)(a), and the process of separating sand and adapting it for use is also a manufacturing process within the meaning of section 4(a) of the Indian Factories Act. Therefore, the workman would fall under section 2, clause (2)(d) of the Indian Factories Act, and would, therefore, be a workman within the meaning of that term in the Workmen's Compensation Act.
The next point is whether the application is in time. Under section 10 of the Workmen's Compensation Act, which is very similar to the corresponding provision in Page: 135the English Workmen's Compensation Act, it is provided that—
“No proceedings for the recovery of compensation shall be maintainable before a Commissioner unless notice of the accident has been given, in the manner hereinafter provided, as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been instituted within six months of the occurrence of the accident or, in case of death, within six months from the date of death:
“… Provided, further, that the Commissioner may admit and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been instituted, in due time as provided in this sub-section, if he is satisfied that the failure so to give notice or institute the claim, as the case may be, was due to sufficient cause.”
Now, here, this injury took place on September 24, 1929. Therefore, under this section the last date for giving notice was March 24, 1930. But it appears, as has been found by the learned Commissioner, that the notice of the claim was given to the opponent on August 1, 1931, and it has been further found that up to the end of June 1930 the present respondent was in the employ of the present appellant. Therefore, he did not give any notice of his claim. The learned Commissioner is of opinion, therefore, that until the end of June 1930, the respondent had sufficient cause for the delay in giving such notice, and I think he is right. As the respondent, after he came from the hospital, was engaged by the present appellant himself, and was in the appellant's service, there was sufficient reason, I think, for not giving him notice of his claim till the end of that period. But as to the subsequent period from July 1930 to August 1, 1931, when he did give notice to the opponent, the learned Commissioner is of opinion that the delay of a little more than a year has not been explained by the applicant. However, the learned Commissioner holds that if the delay for the first period is to be excused on the ground of there being sufficient reason for it, the delay for the subsequent period does not Page: 136matter and ought also to be excused under the ruling in Lingley v. Thomas Firth & Sons. [1921] 1 K.B 655
In that case although on the actual facts the delay was not sufficiently explained, it was held that once the delay in not filing the claim within six months is excused on the ground that there was sufficient cause for it, then the subsequent delay was not material and should also be excused by virtue of the sufficient cause being given for the first period of delay, the proviso being made there that it was subject to the ordinary period of limitation. Now, here, the only period of limitation provided for in the Workmen's Compensation Act is that contained in section 10, and there is no other period of limitation provided for in this Act. Article 22 of the Indian Limitation Act, which contains the provision for a regular suit for personal injury, would not apply here, because the proceedings under this Act are not regular suits, and they are to be started by an application and not by a suit. Then, again, section 19 of this Act clearly shows that the jurisdiction of a civil Court is ousted in matters required by this Act to be settled by the Commissioner. Therefore, to my mind, the only period of limitation contemplated by the legislature is that provided in section 10, and, following the judgment of the Court of Appeal in Lingley v. Thomas Firth & Sons, [1921] 1 K.B 655 I agree in holding that the lower Court has rightly exercised its discretion in excusing the delay for the second period as well.
I would, therefore, agree that the appeal fails and should be dismissed with costs.
Appeal dismissed.
J.G.R
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