Full Judgment Text
Civil Appeal No.5786/2012
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5786 OF 2012
Shantabai Ananda Jagtap & anr. … Appellant(s)
Versus
Jayram Ganpati Jagtap & anr. … Respondent(s)
J U D G M E N T
Rajesh Bindal, J.
1. The order dated 09.04.2010 passed by the High Court of
Judicature of Bombay in First Appeal No.591 of 2009 upholding the
order dated 04.07.2008 passed by the Commissioner for Workmen’s
Compensation at Sangli (for short “the Commissioner”) has been
impugned by the legal heirs of the workman.
2. It is a case in which an application was filed by the legal
Signature Not Verified
heirs of the deceased Machindra Ananda Jagtap, who died in a road
Digitally signed by
POOJA SHARMA
Date: 2023.07.04
17:15:34 IST
Reason:
accident while driving jeep no. MH-10-8363 on 17.08.1993. The jeep
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was owned by Jayram Ganpati Jagtap and insured with the United India
Insurance Co. Ltd. The claim was on the basis of the fact that the death
of the Machindra Ananda Jagtap had occurred during the course of his
employment, hence, his legal heirs are entitled to receive
compensation. Claim of ₹ 1,13,855 /- along with interest and penalty was
made. The application was filed with the Commissioner on 02.08.2004
under the Employees Compensation Act, 1923 (for short “the 1923
Act”).
3. The Commissioner rejected the application on the ground
of delay as well as on merits. The claim petition was also held to be not
maintainable in view of Section 167 of the Motor Vehicles Act, 1988 (for
short “the 1988 Act”). The High Court upheld the order touching the
issue of delay and not dealing anything on merits. The High Court
found that the delay being enormous, the Commissioner had rightly
declined to condonation of delay. However, the claim petition was held
to be maintainable.
4. The argument raised by the learned counsel for the
appellants is that it is a case in which the death of Machindra Ananda
Jagtap had occurred in road accident while he was in employment of
Jayram Ganpati Jagtap (respondent no.1). The accident took place on
17.08.1993. Immediately thereafter, as advised, a claim petition was
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filed before the Motor Accidents Claims Tribunal (hereinafter referred
to as “the Tribunal”) which was disposed of on 07.03.2003. The claim
was accepted against the offending vehicle. However, the vehicle
being not insured, the award was passed only against the owner of the
vehicle, which remained unexecuted. An affidavit dated 01.05.2023
has been filed in this Court stating that the award could not be executed
till date. No claim was made against the respondents. After the
aforesaid award was passed by the Tribunal, as advised, the appellants
filed a claim petition before the Commissioner on 02.08.2004. The
same was rejected on account of delay as well as on merits. The delay
in filing the application before the Commissioner was not deliberate.
In fact, the family of the deceased was left high and dry after the death
of a young bread earner in the family. The High Court should have
exercised jurisdiction vested in it to condone the delay and grant relief
to the appellants. The deceased was working with the respondent no.1
on a monthly salary of ₹ 2000/-. The compensation which the appellants
would be entitled to has to be calculated in terms of the formula laid
down under the 1923 Act.
5. No one has appeared for respondent no.1/ the employer
despite service.
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6. The learned counsel for the Insurance Company submitted
that it is a case in which there was no relationship of employer and
employee between the deceased and the respondent no.1. They were
both related to each other. It was even admitted by the claimant that
no record was produced to show his employment. It was only created
to claim compensation.
7. Heard learned counsel for the parties and perused the
record/ relevant documents.
8. From the facts on record, it is evident that Machindra
Ananda Jagtap died in a road accident on 17.08.1993. Immediately
thereafter, his legal heirs filed a claim petition under Section 166 of the
1988 Act before the MACT, Hukkeri in 1993 bearing MACP No. 1458 of
1993. Same was adjudicated upon by the Tribunal vide Award dated
7.3.2003 awarded compensation of ₹ 81,600/- was assessed to be
payable to the appellants. The award of the Tribunal attained finality
as nothing was pointed out at the time of hearing that it was challenged
any further. Thereafter, the appellants filed application before the
Commissioner seeking compensation under the provisions of the 1923
Act. However, a perusal of the order passed by the Commissioner
shows that the claim petition was dismissed as the appellants had
exercised the option for claiming the compensation under the Motor
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Vehicles Act, 1988 and hence they could not claim benefit under the
1923 Act. However, the fact remains that the aforesaid findings
recorded by the Commissioner were set aside by the High Court and
the application was held to be maintainable against which no appeal
has been filed by the aggrieved party. The Commissioner had
dismissed the application on the ground of delay also. Besides this
even employer and employee relationship was not proved to claim
compensation. The High Court upheld the findings of the
Commissioner on the delay in filing of claim petition. However,
nothing was discussed on the issue of employer and employee
relationship.
9. Two issues arise in the present appeal. Firstly, whether
there was sufficient cause for condonation of approximately 9 years
and five months delay in filing the Application before the
Commissioner under the 1923 Act. Secondly, in the event the aforesaid
hurdle is crossed, whether the relationship of employer and employee
has been proved.
10. In our opinion, the issue regarding relationship of employer
and employee between the deceased and the respondent no.1-Jayram
Ganpati Jagtap needs to be considered first.
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11. As far as the relationship is concerned, the Commissioner
had framed the following issue:
“Do the Applicants prove that, the accident of
deceased was arose during the course of and out
of his employment with Opponent NO.1?”
12. In the evidence led by the appellant no.1, she admitted in
her cross-examination that the owner of the vehicle was brother of her
husband. It was further admitted that they were having common ration
card. They were members of the same Joint Hindu family. Salary
certificate of the deceased was produced on record, however the same
was not proved. There is nothing to suggest that the so-called
employer had admitted the relationship of master and servant. Even
before this Court, the learned counsel for the appellants has not been
able to refer the evidence produced on record to show that there
existed the master and servant relationship between the deceased and
the respondent no.1, namely, the owner of the vehicle who has not
chosen to put in appearance despite service.
13. The conduct of the parties it is evident from the award of the
Tribunal where with a view to receive compensation from the offending
vehicle, the owner of the vehicle had appeared in the witness box and
stated that he was paying salary of ₹ 2,000/- to the deceased and a daily
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allowance of ₹ 25/-. In case that was so, nothing prevented the owner
of the vehicle, who is said to be the employer, to have appeared before
the Commissioner and admitted the relationship of employer and
employee. In fact, the conduct of the parties now shows that they
intended to claim compensation from the offending vehicle. In a
calculated move, no claim was made against the owner of the vehicle
or the Insurance Company of the vehicle, being driven by the
deceased, before the Tribunal.
14. The relationship of employer and employee has not been
proved before the Commissioner. In our opinion, the same being the
basic requirement to be fulfilled for claiming compensation under the
1923 Act, the appellants may not be entitled to receive any
compensation.
15. Even on the ground of delay in filing the application before the
Commissioner i.e. 02.08.2004 also, the same deserves to be dismissed.
Case set up by the appellants themselves was that they had not claimed
any compensation against the owner of the vehicle, who is alleged to
be the employer, while filing application before the Tribunal. It was
for the reason that they wished to claim compensation under the 1923
Act. Once that was so, this fact being in their knowledge from the very
beginning, delay of 9 years in filing application under the 1923 Act, is
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certainly fatal for consideration of the claim by the appellants for award
of compensation. In fact, the application before the Commissioner was
filed only after the proceedings in the Motor Accident Claims Tribunal
were concluded on 07.02.2003 and the appellants were not able to get
any compensation in execution. The application before the
Commissioner was filed on 02.08.2004. Therefore, in our opinion, no
sufficient cause is established for condonation of delay in filing the
application.
16. For the reasons mentioned above, we do not find any
infirmity in the impugned order. The appeal is accordingly dismissed.
There shall be no order as to costs.
…………………, J.
( Abhay S. Oka)
……………….., J.
(Rajesh Bindal)
New Delhi
July 04, 2023.
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