DICISION This appeal has been filed under section 30 of the Workmen's Compensa--tion Act against the order of the Commissioner awarding compensation.
2. Mushtaq Ahmed Khan, deceased was the husband of the respondent. He was in the employment of the appellant as a driver. On 1st August 1967 he was driving a car belonging to the appellant and taking the Manager of the appellant from Karachi to Nawabshah. On the way the car met with an accident. As a result of which the driver as well as the manager sustained serious injuries and died.
The Management came to know of the accident and the respondent also made representation for giving compensation. Consequently, the Management agreed to pay Rs. 100 per month as compensation. Toe amount was paid up to March 1971 and thereafter it was stopped. So the respondent made an application-to the Commissioner claiming Rs. 7,000 as compensation.
3. The claim was resisted on various grounds. It was admitted that the deceased had died while driving the car as alleged by the respondent but it was pleaded that the car did not belong to the company but it was the personal car of the Manager who had purchased the car and was on leave when the accident has taken place. It wag further pleaded that the claim for compensation could not be entertained by the Commissioner for want of notice in view of the provision of section 10 of the Workmen's Compensation Act, that the claim was the barred having been brought more than one year after the date of accident anal in any case the amount which had been paid to the respondent was liable to be adjusted.
4. Issues were framed and evidence was led. On the assessment of the evidence the learned Commissioner condoned the delay in filing the application beyond the period of limitation and came to the conclusion that the car belonged to the appellant and the plea that the Manager was on leave was not established. He further held that the appellant's husband died while in the course of the duty which he was performing. It was observed that the fact of accident was within the knowledge of the appellant and, therefore, non-service of the notice made no difference. He also refused to allow adjustment. On the basis of these findings he allowed Rs. 6000 as compensation and directed the appellant to pay the amount within a fortnight.
5. Aggrieved by the aforesaid decision the present appeal was filed. The amount of compensation was deposited with the Commissioner as having been duly certified.
6. The learned counsel appearing on behalf of the appellant agitated the same pleas before me.
The first question that arises for consideration is whether the driver died by an accident arising out of and in the course of employment. The contention of the appellant was that the car belonged to the Manager who was on leave and the deceased was never deputed to drive that car but it was the private arrangement between the Manager and the deceased, and, therefore, it could not be considered that the accident arose out of and in the course of the employment of the appellant.
This was rejected by the Commissioner on the assessment of evidence which was produced. The learned Commissioner had given cogent reasons in reaching the conclusion. 1'he appellant failed to produce any documentary proof in support of the plea. The leave application was not produced.
There was also no evidence to show that the car belonged to the manager. Apart from this, this is a question of fact and cannot be allowed to be reagitated in appeal as appeal lies only if a substantial question of law is involved. No appeal lies against the finding of fact.
7. The next ground which bas been taken is that no notice of the accident was served by the respondent. It seems that the learned counsel did not pay attention to the proviso (A) of section 10
(1) of the Workmen's Compensation Act which lays down that the want of any notice shall not be a bar to the entertainment of a claim, if this claim was in respect of the death of a workman resulting from an accident which occurred at any place where the workman at the the of accident was working under the control of the employer or of any person employed by him and the workman died at such place. It is an established fact that the deceased was driving the car of the appellant and was taking the Manager from Karachi to Nawabshah when on the way the fatal accident took place. Not only this but even proviso B further lays down that if the employer had knowledge of the accident from any other source at or about the the when it occurred. It is an admitted position that the appellant bad immediately come to know about the accident. It is alto an admitted position that an amount of Rs. 100 per month was being paid to her. Thus, even if any notice was needed, the representation made by the respondent would be deemed to be notice as required by law. The appellant has failed to produce the representation made by the respondent and it cannot be presumed that there was any defect or irregularity in the notice. Even otherwise any defect or irregularity will not defeat the claim on account of the aforesaid proviso to section 10.
8. Now I will deal with the question of limitation. Indeed the claim was filed one year after the happening of the accident as required by section 10 prior to the amendment the delay was condoned by the Commissioner. In my view, sufficient reasons existed for condoning the delay. The respondent had approached the appellant for the payment of compensation and the appellant agreed to pay Rs. 100 per month. It was only after March 1971 that the payment was stopped. Thus prior to the stoppage of the payment the respondent had no occasion to approach the Commissioner to claim the compensation. Thus the period of one year would start running after the payment was stopped. The, 2 present claim was filed on 18th March 1973, Thus it was within one year of the stoppage of the payment of the amount which was agreed upon The application which was filed claiming compensation was, therefore, in the.
9. Lastly, it was urged that the amount which was paid was liable to be adjusted. This plea was rightly rejected by the learned Commissioner. It has been clearly laid down in the Workmen's Compensation Act that no payment of compensation in respect of a workman whose injuries had resulted in death would be made otherwise than by deposit with the Com--missioner and no such payment made directly by an employer would be deemed to be a payment of compensation, provided that in the case of the deceased workman an employer may make to any dependent advances on account of compensation not exceeding an aggregate of one hundred rupees and only such aggregate could b-- adjusted. Thus this provision of law is a complete answer to the contention raised on behalf of the appellant. Admittedly the agreement was not recorded before the Commissioner and, therefore, no adjustment could be allowed.