The Commissioner can award higher compensation than sought if justified, and failure to provide notice is inconsequential if the employer was aware of the accident.

JUDGMENT :

S. MANU, J.

1. The opposite party in ECC No.59/2017 on the file of the Employees Compensation Commissioner, Thiruvananthapuram has filed this appeal aggrieved by the order granting compensation to the respondent for injuries sustained in an accident during the course of his employment under the appellant.

2. The respondent was employed as a paid headload worker in a godown of the appellant. On 17.11.2007 at about 11:30 am, while he was loading rice bags, one of the bags fell on his legs and he sustained fracture of both bones of both legs leading to deformity of both lower limbs. He had to undergo surgical procedures and treatment as inpatient. The application for compensation was filed claiming an amount of Rs.1,17,410/-.

3. The respondent was examined as PW1 before the Commissioner. On the side of the appellant RW1 and RW2 were examined. Exts.A1 to A7 were marked on the side of the respondent. Exts.B1 to B7 were brought on record by the appellant.

4. The learned Commissioner, on appreciation of the pleadings and evidence concluded that the respondent was entitled for compensation and granted an amount of Rs.2,62,216/- together with interest at the rate of 12% from the date of accident till the realization. Cost was also awarded to the respondent.

5. Though notice was issued there is no appearance for the respondent.

6. Heard the learned counsel for the appellant. Perused the impugned order as well as relevant records.

7. The learned counsel for the appellant raised two legal issues as substantial questions of law involved in the appeal. He contended that the learned Commissioner surpassed his jurisdiction by granting a compensation of Rs.2,62,216/- as the claim of the respondent was only for an amount of Rs.1,17,410/-. He argued that the Commissioner has no jurisdiction to grant a compensation higher than that was sought for by the claimant. However, this question is covered against the appellant by the judgment of this Court in Chairman and Managing Director, Kerala State Electricity Board Ltd. v. Sudhish, (2026) KLT OnLine 1553. It has been held in the said judgment that the Commissioner has the authority and duty to award just compensation even if the same is higher than the compensation claimed. Hence, the first substantial question of law raised by the learned counsel for the appellant is answered against the appellant.

8. The next substantial question of law canvassed by the learned counsel for the appellant is regarding want of a notice as contemplated under Section 10 of the Employees Compensation Act, 1923. He submitted that no notice was issued to the appellant by the employee as provided under S.10. However, the said contention was rejected by the learned Commissioner holding that since there was mediation between the parties, the accident was well within the knowledge of the appellant and hence the failure to issue notice is inconsequential. He submitted that the opening words of (1) are unequivocal and no claim for compensation can be entertained by the Commissioner unless notice of the accident has been given. The learned counsel contended that the Commissioner overlooked the mandatory nature of (1) and rendered a finding, that cannot be sustained in law. He urged that for want of proper notice, the proceedings before the learned Commissioner were not maintainable.

9. The relevant provisions of Section 10 are extracted hereunder for ready reference: -

“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 wi