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MADRAS HIGH COURT
RAMASWAMI
S.Suppiah Chettiar
Versus
V. Chinnathurai
A.A.O. No. 392 of 1954
Decided On : 10 August, 1956
WORKMEN'S COMPENSATION ACT - S. 3(5) - ELECTION OF REMEDIES - WORKMAN'S DEPENDANT - SUIT IN CIVIL COURT - LIMITATION - ART. 21 OF THE LIMITATION ACT, 1908.
Fact of the Case:
The petitioner, the father of a deceased workman, filed an application for permission to sue as a pauper under Or. XXXIII, Rule 5(d) (1), C. P. Code, for compensation under the Workmens Compensation Act and the Fatal Accidents Act. The application was dismissed on two grounds: (i) by reason of the presentation of the claim by the petitioner under the Workmens Compensation Act, the proposed suit is not maintainable; and (ii) the suit is patently barred by limitation.
Finding of the Court:
The court held that the petitioner was not barred from instituting a suit in the civil court under S. 3(5) of the Workmens Compensation Act, 1923, as the claim before the Commissioner was withdrawn before the proceedings were commenced. However, the court held that the suit was barred by limitation under Art. 21 of the Limitation Act, 1908.
Issues: 1. Whether the petitioner was barred from instituting a suit in the civil court under S. 3(5) of the Workmens Compensation Act, 1923? 2. Whether the suit was barred by limitation under Art. 21 of the Limitation Act, 1908?
Ratio Decidendi: 1. The court held that the term "instituted" under S. 3(5) of the Workmens Compensation Act means "setting on foot an enquiry" and is more than a mere filing of a claim. The court found that the petitioner had not commenced proceedings before the Commissioner, and therefore, there was no election of remedies that would bar the petitioner from instituting a suit in the civil court. 2. The court held that the suit was barred by limitation under Art. 21 of the Limitation Act, 1908, as the suit was filed more than one year from the date of death of the deceased workman.
Final Decision: The appeal was dismissed with costs.
JUDGMENT :- This appeal is directed against the order of the learned District Judge of East Tanjore, in O. P. No. 64 of 1953, rejecting the application for permission to sue as a pauper under Or. XXXIII, Rule 5(d) (1), C. P. Code.
2. The allegations in the petition are: The first respondent is the owner of a licensed cargo boat bearing No. 88. The second respondent is the managing agent of the first respondent and is also a contractor doing business at Negapattinam. On or about 12-3-1952 the 2nd respondent on behalf of the first respondent engaged among others the petitioners son Krishnaraju as a crew of the boat for the purpose of carrying beedi tobacco bundles from Nagapattinam port. After loading, the boat left the port on 12-3-1952. On the voyage the petitioners son died in the boat on 16-3-1952 near Tranquebar.
On enquiry the petitioner learnt that death of the petitioners son was caused by the cross-beam of the mast of the boat breaking and falling on his son. The 2nd respondent who was in charge of the boat was negligent in not seeing that the cross-beam of the mast was in a fit condition. The petitioner, therefore, claimed a compensation or Rs. 3635 under the Workmens Compensation Act and the Fatal Accidents Act from both the respondents. A further sum of Rs. 135 was claimed as the balance of pay due to the deceased.
3. The petitioner applied for compensation before the Commissioner for Workmens Compensation, Madras, as he claims to be a dependant of the deceased workman within Sec. 2(d) of Act VIII of 1923. Presumably acting under some advice, the petitioner applied for the withdrawal of this petition before the Commissioner under Or. 23, Rule 1, C. P. C., with liberty to agitate the matter by a suit in a court of law. The Commissioner, who is a layman, without realising that he had no power to do so, not only allowed the withdrawal of the petition but also granted permission to prosecute the claim in a civil court, ex. A. 2. The petitioner has thereupon filed the present application to sue the respondents in the pauper form in the District Court, East Tanjore. 4. The application has been dismissed on two grounds viz., (i) by reason of the presentation of the claim by the petitioner under the Workmens Compensation Act, the proposed suit is not maintainable; and (ii) the suit is patently barred by limitation. Hence this appeal.
5. On a consideration of all the circumstances of the case I have come to the conclusion that on ground No. (i), the learned District Judges order cannot be supported and that on ground ii) it is unassailable. I shall now set out my reasons.
6. The point for determination is the scope of S. 3(5) of the Workmens Compensation Act, 1923, which runs as follows :
"Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil court a suit for damages in respect of the injury against the employer or any other Person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury- (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if an agreement has come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act." (see page 103 of Encyclopaedia of Labour Laws and Industrial Legislation in India, Vol. IV by A.N. Aiyar (Federal Law Depot, Kashmiri Gate, Delhi).
7. The corresponding section under the English Workmens Compensation Act was S. 1, sub-clauses (3) and (4) in the Workmens Compensation Act of 1906 and S. 29 under Workmens Compensation Act of 1925 (See page 430 appendix G of Ramanatha Aiyar and Krishnamurthi Iyer, The Workmens Compensation Act, 1923, 2nd Edn. by H.L. Sarin - The University Book Agency, Katcheri Road, Lahore 1939). The following is the summary of this section prescribing alternative remedies in the English Work
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