An employee is entitled to compensation under the Workmen's Compensation Act, 1923, even if there is no loss of earning, and a delay in filing a claim for compensation can be condoned if there is a plausible explanation for the delay.

JUDGMENT :

A. Pasayat, J. - The challenge in this appeal is to legality of the order passed by the Commissioner under Workmen's Compensation-cum-Asst. Labour Commissioner, Balasore (in short the 'Commissioner'), by which an award of Rs. 10,080/-was made in favour of the respondent No. 2

2. The background facts are that an application was filed by the respondent No. 2 (described hereinafter as the 'workman') on January 10, 1985 alleging that he sustained injuries on February 2, 1975 while performing duties under the present appellant (described hereinafter as the 'employer'). He claimed compensation of Rs. 30,000/- alleging that at the relevant time he was in the wage group of Rs. 300/- to Rs. 400/-and due to the accident he sustained injuries and lost his right hand. The employer in its return accepted that there was an accident, but took the plea that the workman sustained injuries while doing a work which exceeded the work schedule allotted to him, and therfore it was not liable for any payment. The undisputed position is that the injured had gone upto level of 33 K.V. line including A.B. switch of 33/11 K.V.Transformer, and came in contact with the 33K.V. line and fell down due to shock. He was hospitalised, and there was amputation of right arm. The employer stated that the monthly wage that was being earned by the injured was Rs. 249.90. The maintainability of the claim was also challenged by the employer, on the ground that the same having been filed after about ten years of the accident was hopelessly barred by time and in the absence of any plausible explanation for delay, the claim petition was liable to be rejected. It was pointed out that the period of limitation for lodging the claim is two years in terms of Section 10(1) of the Workmen's Compensation Act, 1923 (in short the 'Act').

3. During trial the employer attempted to justify its stand that the act of the injured was unauthorised and therefore, the accident did not arise out of and in course of his employment in order to entitle the latter to any compensation.

4. The Commissioner did not accept the plea of unauthorised action. He also condoned the delay, on the ground that there was probably assurance of payment of compensation, which dissuaded the claimant from coming before the authority. A specific plea was also raised by the employer that there was no loss of income and even after the accident, the authorities on sympathetic consideration permitted the injured to work in a different post and there being no loss of earning, the claim petition was not maintainable.

This aspect does not appear to have been specifically dealt with by the Commissioner. The Commissioner did not award any interest, because the application was presented nearly after ten years of the date of accident.

5. In appeal, two points are primarily urged by the employer namely, there being no loss of earning, the claim petition was not maintainable, and there being no explanation for delayed presentation of the claim petition, the condonation of delay was not justified since the same was condoned on unsustainable premises. A foible attempt was also made to imprss that the claimant-workman having exceeded the work schedule allotted to him, the accident did not take place out of and in course of employment.

The learned counsel appearing for the workman submitted that submissions made by the employer are not acceptable both in law and on facts.

6. I shall deal with the contentions sequentially. The Commissioner has dealt with the plea of unauthorised action at a great length and has concluded that the contentions have been disproved by evidence brought on record. This essentially being a conclusion on facts, I do not want to interfere because there is no perversity in the conclusion.

7. Coming to the question of entitlement of a claimant in case there is no loss of earning and there is continuance of engagement a reference to Section 4(1)(c)(ii) of the Act is necessary. The plea of employers that in c