516BASNAYAKE, C.J.—Gunapala v. High Lead Road Omnibus Co. Ltd.
1959Present: Basnayake, C.J., and Pulle, J.GUNAPALA, Appellant, and HIGH LEVEL ROAD OMNIBUS CO.,
S. C. 446—D. C. Colombo, 30,438
Workmen's Compensation Ordinance—Section 60—Workman’s duty to elect oetweencommon law remedy and statutory remedy.
Where a -workman employed under A institutes an action in a civil courtagainst B for damages in respect of an injury caused by B's servant, section 60of the Workmen’s Compensation Ordinance does not preclude him from main-taining the action against B if, during the pendency of the action, he acceptscompensation from his employer A.
zxPPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with Miss Maureen Seneviratne, for Plaintiff-Appellant.
E. F. N. Oratiaen, Q.C., with H. W. Jayewardene, Q.C., S. J. Kadir-gamar and L. C. Seneviratne, for Defendant-Respondent.
January 23, 1959. Basnayake, C.J.—
The appellant instituted this action on the 13th November 1953 againstthe respondent, the High Level Road Omnibus Company, a companyincorporated under the Companies Ordinance No. 51 of 1938. Healleged that on or about 21st February 1952 a servant employed by the
BASNAYAKE, C.J.—Gunapala v. High Level Hoad Omnibus Go. IM. 5X7
respondent as a driver of an omnibus, in the course of his employmentunder the Company and driving omnibus bearing registered No. IC 587,drove it negligently on a highway without reasonable consideration fortheother users on it and at the junction of Havelock Road and Park Roadcollided with lorry bearing registered No. CL 7982 driven by the appellantand caused serious injury to him. He claimed as damages a sum ofRs. 18,000. The respondent filed answer on 5th February 1954. On29th March 1954 the appellant wrote to the Supervising Officer, Un-employment Relief Works, where he was employed, bringing to hisnotice the fact that he had sustained severe injuries in the collision andappealed to him to obtain reasonable compensation. On 29th April1954 the appellant addressed a letter to the Commissioner of Workmen’sCompensation Claims bringing to his notice the fact that he was in direstraits and asked for financial assistance. In consequence of this re-presentation, his employer, the Government, decided to admit liabilityto pay compensation for 10% loss of earning capacity under the Work-men’s Compensation Ordinance, and entered into a memorandum ofagreement dated 13th June 1955 accepting liability in a sum of Rs. 490and on that very day paid that sum to the appellant. On 27th January1956 the respondent amended his answer and pleaded among othermatters that the appellant was not in law entitled to maintain this actionfor damages in a court of law as he was barred from doing so by operationof section 60 of the Workmen’s Compensation Ordinance. At the trialthe only matter which was contested was whether the appellant was inlaw entitled to maintain this action and to recover any damages. Afterhearing the evidence of Dr. Milroy Paul who deposed to the physicalcondition of the appellant after the accident and the submissions ofcounsel on the question of law the learned District Judge held that theappellant was not entitled to maintain this action. The only evidenceproduced by the respondent was that of the Additional' Assistant CrownProctor who deposed to the fact that a demand had been made from therespondent by the Crown for a sum of Rs. 490 being the amount ofcompensation paid to the appellant.
Learned counsel for the appellant submitted that the learned DistrictJudge was wrong in holding that under section 60 of the Workmen’sCompensation Ordinance he was not entitled to maintain this action.
We are of opinion that the submission of learned counsel is sound and thatthe learned District Judge is wrong in holding that the appellant’s actionwas barred by the statute. The section reads as follows :—
“ Nothing in this Ordinance contained shall be deemed to conferany right to compensation on a workman in respect of any injury ifhe has instituted in a civil court an action for damages in respect ofthe injury against the employer or any other person ; and no actionfor damages shall be maintainable by a workman in any court of lawin respect of any injury—
(a) if he has instituted a claim to compensation in respect of theinjury before a Commissioner; or
Punchinona «. Hinniappuhamy
(6) if fee feas agreed with his employer to accept compensation inrespect of the injury in accordance with the provisions of thisOrdinance. ”
We agree with learned counsel for the appellant that the moment theappellant instituted the instant action in the District Court he lost hisright to compensation under the Workmen’s Compensation Ordinancebecause the Ordinance expressly denies the right to compensation under-it to a workman who institutes an action in a civil court for damages inrespect of any injury against his employer or any other person. Uponthe institution of this action the appellant ceased to be entitled to thecompensation he received. The agreement marked P6 which the Crownentered into with the appellant is not an agreement which the partiescould have validly entered into under the statute. The appellant hasreceived a sum of money from the Crown which he is not entitled toreceive under the Workmen’s Compensation Ordinance. The executionof the agreement and the receipt of the money have no legal effect on thecivil action which the appellant had instituted. An employee whoinstitutes an action for damages in a court of law in respect of any injuryand thereafter enters into an agreement with the employer though notentitled to do so under the Workmen’s Compensation Ordinance is notbarred by section 60 from maintaining his action.
We therefore set aside the order of the learned District Judge. Thelearned District Judge has assessed the damages in a sum of Rs. 15,000 andthat assessment is not challenged. We accordingly enter judgment forthe appellant in a sum of Rs. 15,000 with costs both here and in the courtbelow.
Pttlle, J.—I agree.
GUNAPALA, Appellant, and HIGHT LEVEL RD OMNIBUS CO., LTD., Respondent