026-NLR-NLR-V-57-MARTIN-FERNANDO-Appellant-and-ELIZABETH-FERNANDO-Respondent.pdf
1955Present : Gratiaen, J.
MARTIN FERNANDO, Appellant, and ELIZABETH FERNANDO,.Respondent
S. C. 70S of 1955—Workmen’s Compensation C 3jl91 jol
Workmen's Compensation Ordinance {Cap. 117)—Claim thereunder—Failure toinstitute it in due time—EJJect of delay thereafter—“ Sufficient cause ”—
' Section 16 (1) and (2).
■" Where a claim for compensation' in respect of tho death by accident of a
workman was made nearly throe years after the date of tho death—
Held, that tho Commissioner’s jurisdiction under section 16 {2) of the Work– men’s Compensation Ordinance to admit and docide a claim for compensation,aftor tho expiry of tho period of six months specified in section 16 (1) is regulatedby the question whethor tho failuro to institute tho claim within that period-has been sufficiently excused ; the section nowhere states that any subsequent-delay ousts the Commissioner’s jurisdiction under the Ordinance. Tho reasonsfor tho subsequent delay would, however, bo relevant to the Commissioner’sdecision whether or not he ought to exercise in favour of the claimant his-discretion to admit the claim.
^.PPEAL against a decision under the Workmen’s CompensationOrdinance.
L. G. W eeramanlry, for tho respondent-appellant,
C. V. Munasinghe, for the applicant-respondent.
Cur. adc. vitll.
September 20, 1955. Gkatiaen, J.—
This is an appeal against a decision under the Workmen’s CompensationOrdinance ordering the appellant to pay to the widow of P. John Fernando(the deceased) a sum of Rs. 2,400 as compensation ; tho deceased haddied in consequence of an accident arising out of, and in tho course of hisemployment under the appollant. Tho appellant disputed liability onthe ground, inter alia, that the claim for compensation was not preferreduntil tho 13th September, 1954—that is to say, until very nearly threeyears after tho date of death. Prima facie, therefore, tho widow’s failureto make her claim within the period of six months fixed by section 1G (1)
■would, operate as a bar to tho maintenance of the proceedings. TheCommissioner was satisfied, however, that she was protected by section16 (2) the relevant provisions of which are as follows :— ■' –
’“ The Commissioner niay admit and decide any claim to compensa-
tion in any case notwithstanding that …. the claim has notbeen instituted in duo time as required by sub-soction (1) if he issatisfied that the failure so to institute the claim was …. duoto sufficient cause. ”7•
The Commissioner accepted tho widow’s evidence to tho effect that,shortly after tho death of the deceased, the appellant promised to conveyto her a land by way of compensation, and that it was only after thispromise, tho implementation of which was postponed on various pretexts,proved to be completely lacking in sincerity, that sh© sought relief underthe Ordinance. In these circumstances there , is clearly “ sufficientcause ” for the delay in instituting her claim within the statutory periodof six months specified by section 16 (1)..
Learned counsel for the appellant conceded that, on the proved facts,the delay in instituting the claim in six months was sufficiently excused.He argued, however, that, the further delay of over two years was quiteunreasonable and therefore operated as a statutory bar to the proceedings.In support of this argument he relied on certain obiter dicta of Duke
J. in Prophet v. Roberts 1 and of Eve J. in Hillman v. London,.Brighton and South Eastern Railway■
It is certainly correct to say that Duke L. J. and Eve J. suggested(although the particular cases referred to were decided on other grounds)that the length of time -which has elapsed since the expiry of the sixmonth period provided by the English Act was equally relevant to theissue whether there was reasonable cause for failure to make a claimwithin time. This suggested interpretation was, however, unanimouslyrejected by tho Court of Appeal in Lingley v. Firth3, whore themeaning of the following words of proviso (6) to section 2 (1) of theEnglish Act, which are analogous to section 16 (2) of our Ordinance,directly arose for consideration :
“ provided always thatthe failuro to make a claim
within the period above specified shall not be a bar to the maintenanceof such proceedings if it is found that tho failure ■ was -excused bymistake, absence from the United Kingdom, or other reasonablecause. ”
The Court decided that, if there was reasonable causo for not makinga claim within six months, no subsequent lapse of time without reasonable.cause could operate as a bar to proceedings for compensation unless theclaim had become prescribed under some other provision of the law.Similarly, I respectfully take tho view that in Ceylon tho Commissioner’sjurisdiction under section 16 (2) of tho Ordinance to admit and decidea claim for compensation after the 'expiry of tho six month period isregulated by tho question whether tho failure to institute the claim.
1 (1919) 8S L. J., K. B. 957.' . .* {1920) 1 K. B. 28f.
3 (1921) 1 K. B. 655..'
within that period has been sufficiently, excused the section nowherestates that any subsequent delay ousts the Commissioner’s jurisdictionunder the Ordinance. ;,<.'.:- – -•./r-•-
Learned counsel pointed out, alternatively, that under section-16 (2)the Commissioner “ may admit and decide a claim ” whereas the EnglishAct unequivocally declares that the delay in making a claim within sixmonths, if reasonably explained, “ shall not be a bar to the maintenanceof such proceedings”. I agree that the difference of language issignificant having regard to the circumstance that the EnglishAct had manifestly served as a model for the draftsman of ourOrdinance. Accordingly I am prepared to assume that the word “ may ”is used in‘section 16 (2) in a" discretionary rather than a compulsorysense. Even in that view, the delay in instituting a claim for compensa-tion after expiry of the statutory period docs not operate automaticallyas a bar to the claim ; but the reasons for the further delay would berelevant to the Commissioner’s decision whether or not he ought toexerciso in favour of the claimant his discretion to admit the claim;In this particular case the Commissioner accepted the widow’s explanation-that the appellant continued, oven after the six month period had expired,to hold out promises from time to time that he would compensate herwithout the necessity for invoking the machinery of the Ordinance. Inthese circumstances the Commissioner was perfectly justified in exercisingbis discretion in favour of the widow ; the appellant was himself respon-sible for the delay which ho now calls to nis aid..■■''
— Learned counsel concedes that, even if the Prescription Ordinanceapplies to proceedings under the Workmen’s Compensation Ordinance,the present claim is riot barred by limitation. I dismiss the appeal withcosts.
Appeal dismissed.