Claimants must be allowed to explain delays in filing petitions under the Employee’s Compensation Act; dismissal on limitation without opportunity breaches judicial fairness.

JUDGMENT :

SHIVASHANKAR AMARANNAVAR, J.

1. This appeal is filed by the claimant praying to set aside the order dated 01.04.2021 passed in ECA No.4/2017 by the Senior Civil Judge, Lingasugur (hereinafter referred to as “Commissioner” for short).

2. Facts leading to file claim petition by the appellant herein before the Commissioner are as under:

That on 14.07.2009, the claimant was on duty as a driver in the tractor -trailor bearing No.KA 36 TA-7564 and KA -36 T-2610. As per directions of respondent No.1 was driving the said tractor slowly on proper side of the road towards the land of Mallappa Kurubaru with the load of sand for un-loading in the agricultural land. At about 12.00 noon, the said tractor met with an accident and as result, the claimant has sustained fracture of right tibia and also sustained grievous injuries. The said accident has taken place in the course of employment. The claimant has taken treatment in the hospital. He filed claim petition seeking compensation.

3. Respondent No.2 has appeared before the Commissioner and filed objections denying averments of the claim petition. He has also contended that the driver is not holding effective license on the date of accident and it is breach of policy conditions. On the basis of the said pleadings, the Commissioner has framed following issues for consideration:

“Issues

Additional

1. Whether this court has jurisdiction to entertain the present petition?”

4. The claimant has been examined as P.W.1 and got marked documents as Ex.P1 to P8. On behalf of respondents, one witness has been examined as R.W.1 and marked one documents as Ex.R1. The Commissioner after hearing arguments on both side has answered issue No.1 in the affirmative, issue No.4 and additional in the negative and held that issue Nos.2 and 3 does not survive for consideration and dismissed the claim petition holding that it is barred by limitation.

5. Aggrieved by the said judgment of the Commissioner, the claimant has filed this appeal.

6. Heard learned counsel for the appellant and learned counsel for respondent No.2.

7. Considering arguments advanced by learned counsels, the following substantial question of law arises for consideration;

i) Whether learned Commissioner is justified in dismissing the claim petition on the ground of limitation without affording an opportunity to the claimant –petitioner to explain the delay and file an application under Section 05 of the LIMITATION ACT ?

8. Heard learned counsel for the appellant and learned counsel for respondent No.2 on the said substantial question of law.

9. The accident has taken place on 14.07.2019 and the claim petition has been filed on 18.04.2012. Considering the same, the petition has not been filed within two years as prescribed under Section 10 (1) of the Employee’s Compensation Act, 1923. The plea of limitation has not been taken by respondent No.2 who has filed written statement. There is no issue on the point of limitation. Learned Commissioner dismissed the claim petition by considering the period of limitation while passing the impugned judgment. Learned Commissioner has also observed that the proviso of Sub-Section (1) of Section 10 of Employee’s Compensation Act, 1923 provides power to the Commissioner to condone delay if sufficient cause is shown. The Commissioner has also observed that the claimant has not filed any application under Section 05 of LIMITATION ACT seeking condonation of delay while filing petition.

10. If respondent No.2 has taken up defence that the claim petition is not in time and issue has been raised then the claimant ought to have filed an application seeking condonation of delay by put forth reasons for the delay caused in filing petition. The Commissioner is right in considering that limitation point can be raised even though there is no plea as per Section 03 of the LIMITATION ACT . The question of limitation is mixed question of law and fact. The claimant had no opportunity to put forth his cause for condonation of