Kaliommat,. Wanarajah Tea Co., Ltd.
1071Present: Samerawlckrame, J.KALIAMMA et at., Appellants, and WANARAJAH TEA CO., LTD.,Respondent8. C. 7/70—Workmen's Compensation C3JEI167I66
Workmen's Compensation Ad (Cap. 139)—Sections 16 (1), 16 (2), 60—Death ofworkman—Claim for compensation before Commissioner—Requirement offormal institution—Time limit.
When a workman meets with an accident resulting in his death, section10.(1) of the Workmen’s Compensation Act requites that a claim forcompensation thereunder should be. filed formally before the Commissionerfor Workmen’s Compensation within one year of the date of the workman’sdeath. An intimation to the employer is not sufficient.
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SAMERA.WICKRAME, J.—Kaliamma v. Wanarajah Tea Co., Ltd.
Appeal from an order of the Deputy Commissioner for Workmen'sCompensation.
V. Jegasothy, for the applicant-appellant.
Nimal Senanayake, with Miss S. M. Senaratne and Melvin Silva,for the employer-respondent.
Cur. adv. vuU.
November 12,1971. Samebawickbame, J.—
At the inquiry before the Deputy Commissioner for Workmen’sCompensation the following two issues were raised :—
“ (1) Is the undated application received in the office of the Commis-sioner for Workmen’s Compensation on 3.12.68 prescribed interms of Section 16 (1) of the Workmen’s Compensation Act 1
If so, can the Commissioner exercise his discretion under Section16 (2) of the Act ? ”
The Deputy Commissioner heard argument in regard to issue (1) anddelivered order holding that the undated application of the applicantsreceived by him on 3.12.68 is prescribed in terms of s. 16 (1) of theOrdinance as it had not been filed within an year of the date of the deathof the injured man Arumugam.
Arumugam had met with the accident which resulted in his deathon 3rd March, 1966 and died on 22nd April, 1966. A letter from theCeylon Workers’ Congress notifying the employer of the accident wassent on 9th May, 1966.
Section 16 (1) of the Workmen’s Compensation Act (Cap. 139) is to thefollowing effect:—v
“ No proceedings for the recovery of compensation 'shall be main-tainable before a Commissioner unless notice of the accident has beengiven, in the manner hereinafter provided, as soon as practicableafter the happening thereof and before the workman has voluntarilyleft the employment in which he was injured, and unless the claim forcompensatioq with respect to such accident has been instituted withinone year of the occurrence of the accident or, in case of death, withinone year from the date of death : ”
In terms of this provision proceedings ore not maintainable unlessthe claim for compensation has been instituted within one year from thedate of death. The word “ institute ” connotes a forznakact and is moreproperly understood to refer to the making or filing formally before theCommissioner for Workmen’s Compensation a claim rather than anintimation of it to the employer. There are two other provisions in theOrdinance in which the term “ instituted ” has been used and they show
6AMERAWICKRAME, J.—Kaliamma v. Wanarajah Tea Co., Ltd.
the meaning given to it in the enactment. Section 16 (2) which has beenreferred to in the order of the Deputy Commissioner states:—
"The Commissioner may admit and decide any claim to compensa-tion in any case notwithstanding that the notice required by subsection(1) has not been given, or that the claim has not been instituted in duetime as required by that subsection, if he is satisfied that the failureso to give notice or to institute a claim, as the case may be, was dueto sufficient cause.”
Section 60 provides :—
“60. Nothing in this Ordinance contained shall be deemed toconfer any right to compensation on a workman in respect of anyinjury if he has instituted in a civil court an action for damages inrespect of the injury against the employer or any other person; andno action for damages shall be maintainable by a workman in anycourt of law in respect of any injury—
(a) if he has instituted a claim to compensation in respect of theinjury before a Commissioner; or ”
Section 2 (1) of the English Workmen’s Compensation Act, 1897 con- itained in all material respects a provision identical with s. 16 (1) exceptthat the word used was “made” and not “instituted” as in our section.In the case of PoweU v. Main Colliery Co. Ltd.1 1900 A.C. 366 the Houseof Lords held that the provision had reference to a claim made to theemployer and not to the initiation of proceedings before the tribunal.It is significant that when our Ordinance was drafted the word“made” has been altered to “instituted”.
Section 10 (1) of the Indian Workmens’ Compensation Act, 1923contained a provision identical with s. 16 (1) of our Ordinance. InAbdul Karim c. Eastern Bengal Railway3, A. I. R. 1934 Calcutta 460,Buckland A.C.J. made the observation that the word “institute ” in sub-clause 1 of s. 10 is an unfortunate substitution for the word “ make ”in the English Act and held that the provision referred to the claimmade against the employer and not to the proceedings before the tribunal.This view however has been dissented from in Alagappa Mudaliar v.Veerappan Chettiar3, A.I.R. 1942 Madras 116 and Matin v. BidesiRajwer*, A.I.R. 1939 Patna 181.
The Indian Act has subsequently been amended extending the timeto 2 years from the date of death and making it clear that the claim isone preferred to the Commissioner for Workmen’s Compensation.
I am of the view that s. 16 (1) of the Workmens’ Compensation Act(Cap. 139) requires that a claim for compensation should have beenmade by application to the Commissioner within one year of the dateof death. I accordingly affirm the finding of the Deputy Commissionerfor Workmen’s Compensation and dismiss the appeal. The matter willnow go back for further proceedings in respect of the other matters thathave yet to be determined.
A. I. R. 1942. Madras 116.
A.I.R. 1939, Patna 181.
*1900 A. C. 366.
•A. 1. R. 1934, Calcutta 460.
A. KALIAMMA et al., Appellants, and WNANRAJAH TEA CO., LTD., Respondent