Shantabai Ananda Jagtap vs Jayram Ganpati Jagtap

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)

JUDGMENT

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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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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