{"id":200983,"date":"2008-03-26T00:00:00","date_gmt":"2008-03-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-asst-executive-engineer-vs-a-booman-on-26-march-2008"},"modified":"2016-08-05T08:48:32","modified_gmt":"2016-08-05T03:18:32","slug":"the-asst-executive-engineer-vs-a-booman-on-26-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-asst-executive-engineer-vs-a-booman-on-26-march-2008","title":{"rendered":"The Asst. Executive Engineer vs A.Booman on 26 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
The Asst. Executive Engineer vs A.Booman on 26 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 26\/03\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nC.M.A.No.690 of 2001\nand\nC.M.P.No.9131 of 2001\n\n1.The Asst. Executive Engineer,\n  Tamil Nadu Electricity Board,\n  Natham.\n2.The Executive Engineer, South,\n  Tamil Nadu Electricity Board,\n  Dindigul.\n3.The Superintending Engineer,\n  Dindigul Electricity Distn. Circle,\n  Tamil Nadu Electricity Board,\n  Meenakshinaickanpatti,\n  Dindigul-2.\t\t\t\t\t.. Appellants\n\nVs\n\nA.Booman\t\t\t\t\t.. Respondent\n\nPrayer\n\nAppeal filed under Section 30 of the Workmen Compensation Act, against\nthe order dated 15.02.2001 passed in W.C.No.147 of 2000 by the Court of\nWorkmen's Compensation (Deputy Commissioner of Labour), Dindigul.\n\n!For Appellants... Mr.M.Suresh Kumar\n^For Respondent... Mr.R.Nandakumar\t\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal is focussed as against the order dated 15.02.2001 passed in
\nW.C.No.147 of 2000 by the Court of Workmen’s Compensation (Deputy Commissioner
\nof Labour), Dindigul.\n<\/p>\n
\t2. Heard both sides.\n<\/p>\n
\t3. The Court of Workmen’s Compensation (Deputy Commissioner of Labour),
\nDindigul vide order dated 15.02.2001 awarded compensation to a tune of
\nRs.1,79,604\/- (Rupees one lakh seventy nine thousand six hundred and four only)
\nto the claimant.\n<\/p>\n
\t4. The challenge in this appeal is relating to the award passed by the
\nCourt of Workmen’s Compensation (Deputy Commissioner of Labour), Dindigul on
\nvarious grounds; the nitty-gritty of it would run thus:
\n\tThe Court of Workmen’s Compensation (Deputy Commissioner of Labour),
\nDindigul failed to consider that the claimant had not sustained any scheduled
\ninjury.  To prove the alleged permanent disability of the claimant, no doctor
\nwas examined.  The sum of Rs.1,79,604\/- (Rupees one lakh seventy nine thousand
\nsix hundred and four only) awarded in favour of the claimant was without any
\nbasis.  The accident did not occur in the course of the employment.
\nAccordingly, the appellants prayed for setting aside the award passed by the
\nlower authority.\n<\/p>\n
\t5. The following substantial question of law was framed by my learned
\nPredecessor at the time of admitting this Civil Miscellaneous Appeal:
\n\t“Whether the Deputy Commissioner of Labour is correct that disability of a
\nperson should be based on the examination of the concerned Doctor but in this
\ncase, the concerned Doctor who issued disability certificate was not examined by
\nthe Respondent and hence the percentage of injury could not be arrived at the
\nproper calculation and perspective?”\n<\/p>\n
\t6. At the outset itself, the learned counsel for the appellants would
\nraise a legal plea that the claim was barred by limitation; even though in the
\ncounter filed before the lower authority; such a plea that the claim is barred
\nby limitation as per Section 10 of the Workmen Compensation Act, 1923 was
\nraised, the lower authority did not consider it; that there was no application
\nalso for condoning the delay without adverting to the plea of the appellants,
\nthe lower authority awarded compensation.\n<\/p>\n
\t7. I would like to make the point clear that such an argument cannot be
\ncountenanced at this stage.  In the appeal memorandum, absolutely there is no
\nwhisper about the limitation point.  Section 30 of the Workmen Compensation Act,
\n1923 is reproduced here under for ready reference:\n<\/p>\n
\t“30. Appeals-(1) An appeal shall lie to the High Court from the following
\norders of a Commissioner, namely:-\n<\/p>\n
\t(a)an order awarding as compensation a lump sum whether by way of
\nredemption of a half-monthly payment or otherwise or disallowing a claim in full
\nor in part for a lump sum;\n<\/p>\n
\t  [(aa) an order awarding interest or penalty under section 4-A;]\n<\/p>\n
\t(b)an order refusing to allow redemption of a half-monthly payment;\n<\/p>\n
\t(c)an order providing for the distribution of compensation among the
\ndependants of a deceased workman, or disallowing any claim of a person alleging
\nhimself to be such dependant;\n<\/p>\n
\t(d)an order allowing or disallowing any claim for the amount of an
\nindemnity under the provisions of sub-section(2) of section 12; or\n<\/p>\n
\t(e)an order refusing to register a memorandum of agreement or registering
\nthe same or providing for the registration of the same subject to conditions:
\n\tProvided that no appeal shall lie against any order unless a substantial
\nquestion of law is involved in the appeal, and in the case of an order other
\nthan an order such as is referred to in clause(b), unless the amount in dispute
\nin the appeal is not less than three hundred rupees:\n<\/p>\n
\tProvided further that no appeal shall lie in any case in which the parties
\nhave agreed to abide by the decision of the Commissioner, or in which the order
\nof the Commissioner gives effect to an agreement come to by the parties:
\n\t[Provided further that no appeal by an employer under clause (a) shall lie
\nunless the memorandum of appeal is accompanied by a certificate by the
\nCommissioner to the effect that the appellant has deposited with him the amount
\npayable under the order appealed against.]
\n\t(2) The period of limitation for an appeal under this section shall be
\nsixty days.\n<\/p>\n
\t(3)The provisions of section 5 of [the Limitation Act,1963(36 of 1963],
\nshall be applicable to appeals under this section.”\n<\/p>\n
(emphasis supplied)<\/p>\n
\t8. It is clear that there should be substantial question of law raised by
\nthe appellants and thereupon this Court has to frame a substantial question of
\nlaw and only on that adjudication is warranted.  Here in the grounds of appeal,
\nthere was no ground raised regarding limitation and correspondingly no
\nsubstantial question of law also was framed.\n<\/p>\n
\t9. The learned counsel for the appellants would submit that the limitation
\npoint can be raised at any stage.  I would hold that such an argument cannot be
\ncountenanced for the following reasons infra:\n<\/p>\n
\tThe maxim “Culibet licet renuntiare juri pro se introducto” would clearly
\nhighlight that the limitation could be waived by the party concerned, if it is
\nnot against the public policy.    In the famous treatise Maxwell on The
\nInterpretation of Statutes (Twelfth Edition) it is found set out as under:
\n\t “Culibet licet renuntiare juri pro se introducto” (So a person may agree
\nto waive the benefit of the Limitation Act.)\t<\/p>\n
\t10. As such, it is clear that once the limitation point has not been
\nraised in the grounds of appeal and consequently there has been no framing of
\nsubstantial question of law on that point, the learned counsel for the
\nappellants cannot orally raise such a plea at the time of arguments.  This Court
\nin District Collector, Chidambaranar District v. John Nadar<\/a> reported in AIR 2007
\nMadras 228 held that when a citizen approaches the Government for relief, the
\nlatter should not plead limitation.  My mind is redolent with the decisions of
\nthe Hon’ble Apex Court in S.R.Bhanrale v. Union of India<\/a> reported in (1996) 10
\nSupreme Court Cases 172\tand this Court in Oriental Insurance Co., Ltd., v. Karur
\nVysya Banka Ltd.,<\/a> reported in 2001(2) CTC 400.\n<\/p>\n
\t(i) An excerpt from the decision of the Hon’ble Apex Court in S.R.Bhanrale
\nv. Union of India<\/a> reported in (1996) 10 Supreme Court Cases 172 would run thus:
\n\t“4. The amounts now paid to the appellant admittedly fell due to him much
\nbefore his retirement.  The same was wrongfully withheld. It was, to say the
\nleast, improper on the part of the Union of India to plead the bar of limitation
\nagainst such claims of its employees, when it had defaulted in making the
\npayments promptly when the same fell due.  It is not as if the appellant had
\nwoken up after a decade to claim his dues.  He had been asking the Department to
\npay him his dues both while in service and after superannuation also but to no
\navail.  In these circumstances it ill behoved the Union of India to plead bar of
\nlimitation against the dues of the appellant.  We need say no more about it
\nbecause better sense has prevailed and claim of the appellant has now been
\nsettled and payment made to him.  The appellant who had served the Department
\nfor almost 40 years before his superannuation was made to run from pillar to
\npost to get his legitimate dues.  It is a sad commentary of affairs.  He has
\nundoubtedly suffered a lot.  Had the amount which has now been found due and
\npaid, been paid to him at the appropriate time at least in 1984 when he retired,
\nthe appellant would have been saved from a lot of unnecessary harassment;
\nbesides he would have earned interest on that amount also.  He could have
\nutilised that amount for other purposes.  He was denied the same on account of
\nthe default of the Department.  The appellant in his reply to the statement of
\naccount filed by Shri Arya in this Court has claimed almost 18 lakhs of rupees
\nfrom the Department out of which more than Rs.16 lakhs has been claimed towards
\ninterest and compensation etc.”\n<\/p>\n
(emphasis supplied)<\/p>\n
\t(ii) An excerpt from the decision of this Court in Oriental Insurance Co.,
\nLtd., v. Karur Vysya Banka Ltd.,<\/a> reported in 2001(2) CTC 400 would run thus:
\n\t“15. Before winding up, it is also useful to refer the decision of the
\nSupreme Court in Madras Port Trust v. Hymanshu International, AIR<\/a> 1997 SC 1144
\nregarding frequent technical objection being raised by Government and public
\nauthorities include Insurance companies.  The case before the Supreme Court
\nwhich pertains to refund of amount of wharfage, demurrage and transit charges
\npaid to the appellant therein, was barred by Section 110 of the Madras Port
\nTrust Act (II of 1905) in para 2, Their Lordships have held thus:-
\n\t“2…. The plea of limitation based on this section is one which the Court
\nalways looks upon with disfavour and it is unfortunate that a public authority
\nlike the Port Trust should, in all morality and justice, take up such a plea to
\ndefeat a just claim of the citizen.  It is high time that governments and public
\nauthorities adopt the practice of not relying upon technical pleas for the
\npurpose of defeating legitimate claims of citizens and do what is fair and just
\nto the citizens.  Of course, if a Government or a Public authority takes up a
\ntechnical plea, the Court has to decide it and if the plea is well-founded, it
\nhas to be upheld by the Court, but what we feel is that such a plea should not
\nordinarily be taken up by a government or a public authority, unless of course
\nthe claim is not well-founded and by reason of delay in filing it, the evidence
\nfor the purpose of resisting such a claim has become unavailable….”
\nThe above observation of the supreme Court decries the technical plea taken by
\nthe insurance company.  We have already held that though the claim was
\nrepudiated by the Insurance company on 23.09.85, the same was received only on
\n28.09.85 and the 12 months’ period from the date of the said disclaimer ends on
\n28.9.86.  The said day (28.9.86) being a Sunday, the plaintiff Bank is entitled
\nto file a suit on 29.9.86 that is on the next working day as observed by the
\nSupreme Court, it is unfortunate that the appellant insurance company having
\ntaken a policy cannot be permitted to take such a plea to defeat the just claim
\nof the plaintiff. The Insurance companies, when citizens make claim based on
\ntheir policies, must act fairly and such technical plea should not ordinarily be
\ntaken up unless the claim is not well-founded.  We have already observed in the
\nearlier part of our judgment immediately after the fire accident that is on
\n5.10.83, there were serious of correspondences and discussions for the
\nsettlement of claim in terms of the policy at the higher level and due to
\nfailure in settling the claim through negotiations, the plaintiff Bank has
\nrightly filed the suit within the prescribed period; accordingly the objection
\nby the insurance company on the ground of delay in filing the suit cannot be
\nsustained.  As a matter of fact except filing a written statement nothing has
\nbeen brought before the trial court in the form of oral and documentary evidence
\nin support of their defence.  The learned Subordinate Judge, on appreciation of
\noral and documentary evidence let in by the plaintiff Bank, has correctly
\ngranted the decree to the extent of Rs.19,18,792 with interest 12 per cent from
\n5.10.83 that is the date of occurrence till date of settlement.  We do not find
\nany error or infirmity in the impugned judgment of the learned Subordinate
\nJudge.  On the other hand, we are in agreement with the conclusion arrived at by
\nthe learned Judge, since the same is based on acceptable and legal evidence.”
\n(emphasis supplied)<\/p>\n
\t11. The Workmen Compensation Act is a benevolent legislation intended to
\nprovide succour to the hapless and helpless victims of accidents in the course
\nof employment.  Here, the medical records would speak by itself that in the
\ncourse of employment an an Wireman, the claimant sustained severe electrocution
\nand because of that his body below his hip got paralysed.\n<\/p>\n
\t12. At this juncture, the learned counsel for the appellants would
\nunconvincingly submit that there is no clinching proof to show that there was
\npermanent disability, forgetting for a moment, that Ex.A5, which was issued by
\nthe Superintending Engineer, Tamil Nadu Electricity Board, Dindigul,
\ncompulsorily retiring the claimant from service only on the ground of his
\npermanent disability, which resulted consequent upon the injury sustained by him
\nin the course of his employment.  In such a case, it is clear that the employer
\ncannot take a quite antithetical stand to what he himself set out in block and
\nwhite in Ex.A5.  The substantial question of law itself is on the point as to
\nwhether the doctor should have been examined to prove the disability.  To the
\nrisk of repetition without being tautologous, I would like to highlight that
\nEx.A5 issued by the employer himself would clearly highlight that the claimant
\nsustained disability and only on that basis, the claimant was made to face
\npremature retirement.  In such a case, Ex.A1 to A4, the medical documents can
\nrightly be held to have been proved and over and above that examination of the
\ndoctor to prove the permanent disability was not at all warranted in the facts
\nand circumstances of the case and accordingly the substantial question of law is
\nanswered.\n<\/p>\n
\t13. The Court of Workmen’s Compensation (Deputy Commissioner of Labour),
\nDindigul appropriately and correctly considered the medical records and assessed
\nthe permanent disability.  As such I could see no infirmity in the order passed
\nby the lower authority.\n<\/p>\n
\t14. I, therefore do not find any merit in this Appeal and it is dismissed.
\nThe award of the Court of Workmen’s Compensation (Deputy Commissioner of
\nLabour), Dindigul is confirmed. No costs. Consequently, the connected M.P. is
\nalso dismissed.\n<\/p>\n
smn<\/p>\n
To<\/p>\n
The Court of Workmen’s Compensation
\n(Deputy Commissioner of Labour),
\nDindigul.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Asst. Executive Engineer vs A.Booman on 26 March, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26\/03\/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.No.690 of 2001 and C.M.P.No.9131 of 2001 1.The Asst. Executive Engineer, Tamil Nadu Electricity Board, Natham. 2.The Executive Engineer, South, Tamil Nadu Electricity Board, Dindigul. 3.The Superintending […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-200983","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Asst. 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