Under Section 10(1) Proviso 5 of the Workmen's Compensation Act, 1923, the Commissioner may condone the delay in filing a claim for compensation if satisfied that the failure to file the claim within the prescribed time was due to sufficient cause.

S.C. Pandey, J.

1. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') against the order dated 3.12.1990 passed by the Commissioner of Workmen's Compensation in Case No. 18AVCA/NF/88 whereby the appellant's claim for compensation was dismissed by him on the ground of limitation.

2. The appellant claimed that he was an employee of the respondent. He met with an accident on 13.8.1986 during the course of employment. As a result of the accident, the appellant lost his right foot which had to be amputated. The services of the appellant were terminated by order dated 28.3.1987 on the ground that he was medically unfit. The appellant filed an application for compensation on 13.10.1988. The application should have been filed by 13.8.1988. It appears that the appellant also filed an application under Section 5 of the Limitation Act for condonation of delay of two months for not filing the claim within a period fixed for limitation. The claim for compensation worth Rs. 65,975/- was dismissed by the Workmen's Compensation Commissioner, Durg as there was no sufficient cause in the opinion of the Commissioner for filing the application beyond time.

3. It appears that in the application for condonation of delay under Section 5 of the Limitation Act before the Workmen's Compensation Commissioner it was stated in para 3 of the application, supported by an affidavit that he was discharged on 28.3.1987 and even thereafter the management had promised him to pay compensation for the loss of his right foot and, therefore, he could not file the application within time. It was also pleaded that the appellant is an illiterate villager. This application, entertained by the Workmen's Compensation Commissioner under Section 5 of the Limitation Act, was controverted by the respondent denying the allegations made therein in his reply. The reply is not supported by an affidavit. It is signed by the Senior Law Officer Mr. R.S. Singh. However, he has not filed any affidavit in support of his reply. Even in that reply it is not specifically stated that nobody gave any assurance to the appellant. The reply has been drafted in legalistic manner. It is said that the appellant was not entitled to any compensation and, therefore, the question of giving any assurance in that respect did not arise at all.

4. In this appeal the only question for decision is whether the Workmen's Compensation Commissioner should have condoned the delay in filing the application for compensation before it. It appears that both the parties thought that there is no specific provision under the Workmen's Compensation Act, 1923 for condoning the delay and, therefore, Section 5 of the Limitation Act would be applicable. The correct legal position is that under Section 10(1) of the Act, there is 5th proviso to Sub-section 1 of Section 10 which reads as under:

Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause.

This is the provision which would apply to the facts of the case rather than Section 5 of the Limitation Act. However, even in this provision, the learned Workmen's Compensation Commissioner could condone the delay if there was sufficient cause for not preferring the claim within the time prescribed therefor.

5. The learned Workmen's Compensation Commissioner has failed to see that the allegation made in the application for condonation of delay has not been specifically denied by the respondent by a reply supported by an affidavit. He has decided the case only on the question that the appellant could not claim condonation of delay on the ground that he was an illiterate villager. In fact, the pleading of the appellan