Lalji Bhikha Gajera vs Executive Engineer, Gujarat Electricity Board and Others

N.J. Pandya, J.—Admit. Mr. Sanjiv Dave for Mr. Rajesh Dave waives service for respondent No. 2. Miss S. B. Trivedi waives service for respondents No. 1 & 3.

This appeal arises out of a judgment given in Workmen''s Compensation case No. 111 of 1992 (Non-fatal), old number being 88 of 1990 when the commissioner under Workmen''s Compensation Act, Junagadh passed order on December 7, 1995.

The application for compensation came to be dismissed on the ground that the application has been filed by a person who claims to be the guardian and though Rule provides for the power to the Commissioner to appoint a guardian, no such permission is asked by the applicant and the Learned Judge has observed that the only permission obtained is to present the application.

A copy of application Ex.5 submitted before the trial court is produced at page 1. There, it is clearly mentioned that the original claimant Laljibhai Bhikhabhai Gareja is rendered immobile on account of total paralysis and is, therefore, bed-ridden. Both things are mentioned if it has been read carefully though in the request, it could have been made more explicit. The request is two-fold. One has to present the application for compensation and another to proceed with the claim further through the person sought to be appointed as guardian or next friend. The technical distinction sought to be made by the Learned Judge that it is only for presentation Of claim petition and not proceeding with it further, in our opinion is hair-splitting, to say the least. On behalf of the respondent-Board Miss Trivedi strenuously argued that the claimant is neither a minor nor is he of unsound mind and reference to See. 147 of C.P. Code is wrongly made and to that extent we agree with her. However, in our opinion, there is specific Rule 46 which should take care of the situation and that rule reads as under :

"46. When representatives to be appointed by the commissioner : Where any party to a proceeding is under the age of fifteen years or is otherwise unable to make an appearance, the Commissioner shall appoint some suitable person, who consents to the appointment, to represent such party for the purposes of the proceedings."

If the said application Ex.5 with the order granting permission on September 27, 1990, by the concerned learned Commissioner is read in the background of the aforesaid rule, it becomes clear that the permission is not only for presenting the application but also for pursuing further, of course, in accordance with law.

Submissions made that the original claimant Laljibhai Bhikhabhai Gareja is able to move around and that he is not suffering from paralysis or that the averments made in the applications are incorrect, etc., including the submission that there is no affidavit in support of this application can certainly be kept open for being gone into by the trial Court as and when these contentions are raised. At this stage, in our opinion, in the absence of any material on record, it will not be proper to go into these factual aspects of the matter. We are of the clear opinion that application Ex.5 covers both the request for presentation of the application as well as request for pursuing the matter under the Workmen''s Compensation Act for getting compensation on behalf of a person who claims immobile and paralytic. As stated above, these averments can certainly be questioned by filing appropriate reply and in that respect we are not expressing any opinion. However, so far as the order of the Trial Court dismissing the claim is concerned, that order of the trial Court cannot be sustained and in the result this appeal has to be allowed.

The appeal is, therefore, allowed. The order of the trial Court dated December 7 1995, is hereby set aside. The Workmen''s Compensation (NF) Application No. 111 of 1992 thus stands restored on the file of the learned Workmen''s Compensation Commissioner, Junagadh for being disposed of in accordance with law keeping in mind he aforesaid observations. There shall be no order as to costs.