078-NLR-NLR-V-56-SOUTH-WESTERN-OMNIBUS-CO.LTD-Appellant-and-S.-P.-JAMES-SILVA-Respondent.pdf
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PULLE J.—South Western Omnibus Go., Ltd. v. James Silva
1954Present: Pulle J.
SOUTHWESTERN OMNIBUS CO., LTD., Appellant, and S. I*.JAMES SILVA, Respondent
S. C. 523—Workmen’s Compensation, C 30111,798/51
Workmen's Compensation Ordinance (Cap. 117)—Clause 1 of Schedule II—
“ Workman ”—Proof of manual labour not essential—Section 16 (2)—
“ Sufficient cause ”.
A person was employed in an omnibus company as a Senior TrafficInspector whose duty it was to check the number of passengers carried byeach omnibus operating in the area allotted to him and the ticket books. Hehad also to supervise the field staff which inoluded checkers, time-keepers,
■ stand supervisors, drivers and conductors. In the event of the breakdownof an omnibus he had to make a report to the proper official of the companyalthough it was not part of his duty personally to attend to any repairs.
Held, that the employee was a workman within the meaning of section 2of the Workmen’s Compensation Ordinance read with clause l of Schedule If,although he did not fall within the category of manual labourers.
Ignorance of the logal requirements of section 16 (1) of the Workmen’sCompensation Ordinanco is not a sufficient cause within the meaning of section16 (2) for failure to make a claim within the prescribed time. Nor does thefact that notice of the claim was given to the employer have any bearing on thequestion of sufficient cause for failure to claim in time.
jfPPEAL under section 48 of the Workmen’s Compensation Ordinance.
S. Jayaivickreme, with II. B. White and A. C. M. Uvais, fipr therespondent-appellant.
M. M. Kumarakulasirtgham, for the applicant-respondent.
Cur. adv. vult.
May 10, 1954. Pulle J.—•
This appeal raises two questions of difficulty under the Workmen’sCompensation Ordinance. The first is whether the claim was made outof time and the second whether the respondent in whose favour an awardhas been made is a person who is included, in the definition of ‘ ‘ workman ”in section 2 of the Ordinance read with Clause 1 of Schedule II..
The accident which resulted in injury to the respondent occurred onthe 23rd November, 1951. At this time he was employed by the appel-lant company as a Senior Traffic Inspector whose duty it was to checkthe number of passengers carried by each omnibus operating in the areaallotted to him and the ticket books. He had also to supervise the fieldstaff which included checkers, time-keepers, stand supervisors, driversand conductors. In the event of the breakdown of an omnibus he hadto make a report to the proper official of the company although it was
T»tff.T.F. J.—South Western Omnibus Co., Ltd. v. James Silva
331
not part of ills duty personally to attend to any repairs. The circum-stances in which the accident occurred are detailed in the evidence of therespondent which has been accepted. On the 23rd November the re-spondent was riding a motor bioycle with a Junior Traffiulfrspector onthq pillion in the course of their employment. At Dodanduwa the re-spondent heard the sound of a bus coming from Galle and as he saw itcoming he signalled to the driver to stop. The latter applied the brakesbut it moved towards its right and collided with the motor bicycle. Thepillion rider was thrown off and the respondent was run over and severelyinjured..
I am not prepared to accept the submission that the Assistant Com-missioner erred in law dn holding that the respondent was employed,otherwise than in a clerical capacity, in connexion with the operationof mechanically propelled vehicles used for the carriage or conveyanceof passengers. The only authority cited in support of the company’scontention is a passage from the judgment of Gratiaen J. in De Silva v.Premawathie 1 in which he said :
“ I think that the language of the local Ordinance and of its relevantSchedule catches up only the occupations of persons who belong to whatare popularly described as ‘ the working classes ’ engaged in manuallabour and earning ‘ wages ’ as distinct from salaries. ”
As a guide to the interpretation of the definition of “ workman ” insection 2, read with Schedule H, I think, if I may say with all respect,the proposition is stated too widely in the passage which I have quoted.I prefer to accept the interpretation in two earlier passages where thelearned Judge states:
“ It is clear that the Legislature intended to give the enactment onlya fairly restricted range of operation and that it was not intended to
benefit all classes of employeesAn employee could not
qualify for any statutory benefit unless he came strictly within one orother of the various occupations specified in Schedule II. ”
If, therefore, an employee came within the description in Clause I ofSchedule II, in my opinion it makes no difference whether the natureof his duties places him or not in the category of manual labourers. Iderive some support from Manicam v. Sultan Abdul Coder Bros. 2 in whichSoertsz A.J. said :
“ Take the case of an omnibus. It is operated in order to carrypassengers. It requires besides a driver and a cleaner, a conductor.Can it be said that the conductor is not employed in connexion with theoperation of the oranibim 1 If the interpretation of the Commissioneris right, a conductor of an omnibus does not fall within the definitionof workman in tho Ordinance. Is there any justification for such anexclusion, when the egress terms of the paragraph exclude only thoseemployed in a clerical capacity ? ”
In my opinion there was. evidence before the Assistant Commissioneron which he could properly find that the respondent was a workmanwithin the meaning of Clause I of Schedule II.
The question which has .troubled me most is the plea that the claimfor compensation .not haying.been instituted within six mouths of the* {1918) 50 N. L. It.-306. ■* {1936) 38 N. L. H. 28.
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PUX.L.E J.—South 1 Veslrrn Omnibus Co., Ltd. r. Jamrs Silrn
•occurrence of the accident the learned Assistant Commissioner naswrong in admitting the claim under section 16 (2) on th© ground that thefailure to institute the claim in time was due to sufficient cause. Thecompany haB formulated the plea as follows :
“ That in holding Hint there was ‘ sufficient cause ’ within the meaningof section 16 (2) of the Ordinance, for the claim not being instituted withinsix months, the learned Assistant Commissioner had failed, inter alia,to take into consideration the applicant-respondent s own admissionthat he was ignorant of the provisions of section 16 (1) of the Ordinanceand had therefore misdirected himself in law. ”
The first intimation that the Commissioner had of the accident wason 13th May, 1952, when he received the letter A4 dated 9th May, 1952,from one Hema l.alitha Jayawardena praying the Commissioner toorder the company to pay Rs. 4,900 to the respondent as compensationunder the Ordinance. The writer described the respondent as herhusband although she stated in her evidence that she was not legallymarried to him. According to her and the respondent A4 was writtenfor and on behalf of the latter. It is not argued that A4 marks theinstitution of the claim for, if that be so, its receipt was well within sixmonths reckoned from 23rd November, 1951. The period of six monthsexpired on the 23rd May, 1952, but the application for compensationin Form A under regulation 11 of the Workmen’s Compensation Regula-tions, 1935, was received by the Commissioner only on the 9th July, 1952.It is in evidence that the respondent sought to settle the claim with thecompany but that fell through completely towards the end of April,1952, so that the respondent had still nearly a month within which t-r>institute the claim.
Regulation 17 (1) provides that after considering any written statementand the result of any examination of the parties, the Commissioner shallascertain upon what material propositions of fact or of law the partiesare at variance, and shall thereupon proceed to frame and record theissues upon which the right decision of the case appears to him to depend.It is a curious feature in this case that the respondent on whom theburden lay to establish a sufficient cause to account for his failure toinstitute his claim in time was not asked to state categorically the reasonfor the failure. His own position and that of his wife are contradictory.He stated in his evidence that he did not know that a claim for compensa-tion is prescribed in six months. The wife’s evidence is that when shewrote A4 on the 9t.h May she was aware that the claim had to be madewithin six months of the date of accident. In finding sufficient causein favour of the respondent the Assistant' Commissioner has not advertedto the one reason which, by implication, the respondent assigned for thefailure, namely, his ignorance of the legal requirements. The questionI have to decide is whether in the events which have happened there waevidence on which the Assistant Commissioner could have found infavour of the respondent under section 16 (2). I am compelled reluctantlyto come to the conclusion that there was no evidence. In so far asit can be said that the finding is a question of fact I am empowered undersection 48 (3) to reverse it for the purpose of disposing of the appeal.
I'UM.R .T.—South Western Omnibus On., LUl. «>. Jtimes Silvn
:i3.i
That ignorance of legal requirements is not a reasonable excuse waslaid down by the Court of Appeal in England in Boles v. Pascall d> Sons '.The words that fell to be interpreted were, “ tho failure to make a claimwithin the period above specified shall not be a bar to the maintenanceof slch proceedings if it is found that the failure was occasioned bymistake, absence from the United Kingdom or other reasonable causeThis case has been expressly followed in Christoffelsz v. DhanaratkMenikaLearned Counsol for the respondent invited me to distinguish DhanarathMenika's case – on the ground that it does not appear in the judgmentthat notice of the claim had been given to the employer by the widow.I do not think it is a valid ground for making a distinction. However,I have called for and examined the record of that case and it does appearthat notice had been given before the claim was instituted. That anotice of the claim given to an employer has no bearing on the quest innof sufficient cause for failure to claim in time is implicit in section Id (1)the first paragraph of which lays down two concurrent conditions, oneof which is the giving of notice and the other, the institution of proceedingswithin six months.
Learned Counsel for the respondent relies on the case of Munshi «(; Cu.v. Yeshicant T-ukaram 3 where an application made out of time for com-pensation was admitted under section 10 of the Indian Workmen’sCompensation Act VIII of 1925. That section is in terms almostidentical with section 16 (2) of the Ordinance. The workman was injuredin an explosion in a dockyard and he claimed compensation hefuro a('luiins ('nmmissinn set up by the Government of India. Ife was awardeda sum of Rs. 2,280 in respect of his injur}’ but that sum was made subjectto a deduction of the amount awarded under the Workmen’s Compensa-tion Act. Tho reason he gave for applying for compensation after thoproscribed period was that he was under tho impression that ho wouldreceive tho full compensation from the Claims Commissioner and thatit was only afterwards he was informed that in the first instance compen-sation would be granted under the Workmen’s Compensation Act andthat thereafter he would receive additional compensation from the CluiniHCommissioner. The High Court of Bombay held that the workmangenuinely misunderstood his position and that they saw no reason tofind that the discretion under section 10 was exercised unjudicially.If this case purported to hold ignorance of the law as a sufficient causef do not feel I should follow it in preference to Christoffelsz v. DhannmthMtanka – based as it is on the judgments of Cozens-Hardy M. R.,Fletcher Moultan L.J. and Buckley L.J. in Holes v. Pascall <f- Sons 1which is not considered in the Bombay case 3.
Much as I woidd like to reach a conclusion favourable to the respondentI am unable to do so having regard to the evidence and the properinterpretation of the phrase “ sufficient cause ”.
It is unfortunate that ho issue was formulated as to whether groundsexisted to justify relief to the respondent under section 16 (2). The only
1 (1911) 1 K. li. 982.'2 (1949) St N. h. It. 27S.
* (1948) A. I. It. Uombaij 44.
Prrrrti if: Son.*. blrl. Pair
S31
issue on (.ho point vns “ Ithe claim prescribed in law ( ". The realissue was whether the failure to institute the claim within six monthswas flue to sufficient, cause. The Assistant Commissioner’s findingis expressed ns follows :
“ The respondent, company has not in any way been prejudiced bythis application being maths about, one and half months after the pres,erihed period. Moreover, at do stage could it be said that, the applicant,waived his claim for compensation. ”
Kcither reason seems to bo satisfactory. It was not the case of eitliorparty that the applicant waived his claim at any time. The Assistant,Commissioner continued, “ In view of all the circumstances of this>cnsrJ hold that there was sufficient cause within the meaning of section Iff(2) ”. Whether he did or did not take into account the fine substantialreason give n by the respondent, namely, that he was ignorant of the legalroi|iiircinont.s, the finding cannot be supported.
I would allow the appeal anil set aside the order made by the Assistant.Commissioner. 1 make no order as to costs.
Appeal ullmreil.