( 1. ) THIS appeal is preferred under section 30 (1) of the Workmen compensation Act, 1923, in short "the Act" by the appellant-claimant being aggrieved by the order dated 18-11-2004 dismissing his claim under section 10 of the Act. The appellant-Claimant preferred his claim under section 10 of the Act contending that he is working as employee of the respondent on the post of mechanical Fitter in the Coal Mine of respondents at Sarani. On account of working in the coal mine because of its dust he suffered restrictive lung disease an occupational disease whereby he sustained 40% P. P. D. The medical certificate after his examination was also issued by the doctor posted at Medical College, bhopal. The appellants age was 43 years when he sustained the aforesaid disease and his salary was Rs. 3500/ -. Such disease was sustained by the appellant while discharging the duties in the aforesaid coal mine under the employment of the respondent. Thus, they are liable to pay the compensation of it. With these pleadings the claim is preferred for the sum of Rs. 85,000/- along with the interest @ 18% p. a.

( 2. ) IN reply of the respondents by admitting the employment of the appellant with them, it is denied that the appellant sustained such disease because of working in the coal mine by its dust. The assessment of 40% P. P. D. is also denied. The appellants injury and the disease are denied. They were not aware about any incident causing such disease to the applicant. However, the quantum of the salary mentioned by the appellant is admitted by them.

The application of the appellant is baseless and also barred by time. Thus, they are not liable to indemnify any claim to the appellant and prayed for dismissal of the application.

( 3. ) IN view of the pleadings of the parties as many as five issues were framed and after recording the evidence, on appreciation the trial Court by holding that the claim is barred by time and also that the alleged disease was not sustained by the appellant because of working under the employment of the respondent dismissed his claim in toto, on which the appellant has come to this court with this appeal.

( 4. ) IN pendency of the appeal the appellant also filed an application IA No. 4093/06 seeking permission to produce additional document on record. The same is to be considered in this appeal.

( 5. ) HAVING heard the learned counsel, after perusing the record the following substantial questions of law require consideration in this appeal:-

(i) Whether the finding of the learned Commissioner holding the claim barred by time is correct in the available circumstances or such finding is sustainable in view of proviso of section 10 of the Act which empowered the Commissioner to entertain the claim under his discretion even on filing the same barred by the prescribed limitation? If so, has the Commissioner committed error in not invoking such discretion in favour of the appellant? (ii) Whether the learned Commissioner committed error in dismissing the claim of the appellant without appreciating the admissible available evidence? If so, then its effect.

( 6. ) SO far first question regarding limitation is concerned, firstly I would like to reproduce the concerned abstract of section 10 of the Act which reads as under:-

10. Notice to 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 within (two years) of the occurrence of the accident or in case of death within (two years) from the date of death. Provided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . (Provided. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Provided.