Case details

Court: Supreme Court of India
Decided: 4 July 2023
Bench: Abhay S. Oka
Citations: 2023 INSC 592[2023] 10 S.C.R. 95
Type: Judgment (Dismissed)

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Citation: [2023] 10 S.C.R. 95 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

SHANTABAI ANANDA JAGTAP & ANR. versus JAYRAM GANPATI JAGTAP & ANR. on 4 July 2023

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[2023] 10 S.C.R. 95 : 2023 INSC 592

SHANTABAI ANANDA JAGTAP & ANR.

JAYRAM GANPATI JAGTAP & ANR.

(Civil Appeal No. 5786 of 2012)

JULY 04, 2023

[ABHAY S. OKA AND RAJESH BINDAL, JJ.]

Employees Compensation Act, 1923: Compensation – Claimfor – Death of victim during the course of employment in a roadaccident while driving jeep owned by the respondent no.1 – Claimfor compensation by the legal heirs – Award of compensation bythe tribunal, only against the owner of the vehicle, however, theorder not executed – Appellants then filed claim petition before theCommissioner and the same was dismissed on account of delay aswell as on merits – High Court upheld the findings on the delay infiling the claim petition, however, no order passed as regards themerits of the case – On appeal, held: Relationship of employer andemployee between the deceased and the respondent no. 1 not provedbefore the Commissioner, which is the basic requirement to be fulfilledfor claiming compensation under the 1923 Act – Also, no sufficientcause established for condonation of delay in filing the application– Thus, the appellants not entitled to receive any compensation –No infirmity found in the impugned order – Motor Vehicles Act,1988.

Dismissing the appeal, the Court

HELD: 1.1 In the evidence led by the appellant no.1, sheadmitted in her cross–examination that the owner of the vehiclewas brother of her husband. It was further admitted that theywere having common ration card. They were members of the sameJoint Hindu family. Salary certificate of the deceased was producedon record, however the same was not proved. There is nothingto suggest that the so-called employer had admitted therelationship of master and servant. Even before this Court, theappellants has not been able to refer the evidence produced onrecord to show that there existed the master and servantrelationship between the deceased and the respondent no.1,namely, the owner of the vehicle who has not chosen to put in

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Aappearance despite service. In fact, the conduct of the partiesnow shows that they intended to claim compensation from theoffending vehicle. In a calculated move, no claim was made againstthe owner of the vehicle or the Insurance Company of the vehicle,being driven by the deceased, before the Tribunal. [Paras 12,13][99-E-H]

1.2 The relationship of employer and employee has not beenproved before the Commissioner. The same being the basicrequirement to be fulfilled for claiming compensation under theEmployees Compensation Act, 1923, the appellants may not beCentitled to receive any compensation. [Para 14][100-B]

1.3 Case set up by the appellants themselves was that theyhad not claimed any compensation against the owner of thevehicle, who is alleged to be the employer, while filing applicationbefore the tribunal. It was for the reason that they wished to claimDcompensation under the 1923 Act. Once that was so, this factbeing in their knowledge from the very beginning, delay of 9 yearsin filing application under the 1923 Act, is certainly fatal forconsideration of the claim by the appellants for award ofcompensation. In fact, the application before the CommissionerEwas filed on 02.08.2004, only after the proceedings in the tribunalwere concluded on 07.02.2003 and the appellants were not ableto get any compensation in execution. Therefore, no sufficientcause is established for condonation of delay in filing theapplication. Thus, there is no infirmity in the impugned order.[Paras 15, 16][100-C-E]FCIVIL APPELLATE JURISDICTION: Civil Appeal No. 5786of 2012.

From the Judgment and Order dated 09.04.2010 of the High Courtof Bombay in FA No. 591 of 2009.

GAbdulrahiman Tamboli, Rahul Joshi, Shivaji M. Jadhav, Advs. forthe Appellants.

Ravi Bakshi, Ms. Sayma Feroz, Yash Pal Dhingra, Advs. for theRespondents.

The Judgment of the Court was delivered by RAJESH BINDAL, J.

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1. The order dated 09.04.2010 passed by the High Court ofJudicature of Bombay in First Appeal No.591 of 2009 upholding theorder dated 04.07.2008 passed by the Commissioner for Workmen’sCompensation at Sangli (for short “the Commissioner”) has beenimpugned by the legal heirs of the workman.

2. It is a case in which an application was filed by the legal heirsof the deceased Machindra Ananda Jagtap, who died in a road accidentwhile driving jeep no.MH-10-8363 on 17.08.1993. The jeep was ownedby Jayram Ganpati Jagtap and insured with the United India InsuranceCo. Ltd. The claim was on the basis of the fact that the death of theMachindra Ananda Jagtap had occurred during the course of hisemployment, hence, his legal heirs are entitled to receive compensation.Claim of 1,13,855/- along with interest and penalty was made. Theapplication was filed with the Commissioner on 02.08.2004 under theEmployees Compensation Act, 1923 (for short “the 1923 Act”).

3. The Commissioner rejected the application on the ground ofdelay as well as on merits. The claim petition was also held to be notmaintainable in view of Section 167 of the Motor Vehicles Act, 1988 (forshort “the 1988 Act”). The High Court upheld the order touching theissue of delay and not dealing anything on merits. The High Court foundthat the delay being enormous, the Commissioner had rightly declined tocondonation of delay. However, the claim petition was held to bemaintainable.

4. The argument raised by the learned counsel for the appellantsis that it is a case in which the death of Machindra Ananda Jagtap hadoccurred in road accident while he was in employment of Jayram GanpatiJagtap (respondent no.1). The accident took place on 17.08.1993.Immediately thereafter, as advised, a claim petition was filed before theMotor Accidents Claims Tribunal (hereinafter referred to as “theTribunal”) which was disposed of on 07.03.2003. The claim was acceptedagainst the offending vehicle. However, the vehicle being not insured,the award was passed only against the owner of the vehicle, whichremained unexecuted. An affidavit dated 01.05.2023 has been filed inthis Court stating that the award could not be executed till date. Noclaim was made against the respondents. After the aforesaid award

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Awas passed by the Tribunal, as advised, the appellants filed a claim petitionbefore the Commissioner on 02.08.2004. The same was rejected onaccount of delay as well as on merits. The delay in filing the applicationbefore the Commissioner was not deliberate. Infact, the family of thedeceased was left high and dry after the death of a young bread earnerin the family. The High Court should have exercised jurisdiction vestedBin it to condone the delay and grant relief to the appellants. The deceasedwas working with the respondent no.1 on a monthly salary of 2000/-.The compensation which the appellants would be entitled to has to becalculated in terms of the formula laid down under the 1923 Act.

5. No one has appeared for respondent no.1/ the employer despiteCservice.

6. The learned counsel for the Insurance Company submitted thatit is a case in which there was no relationship of employer and employeebetween the deceased and the respondent no.1. They were both relatedto each other. It was even admitted by the claimant that no record wasDproduced to show his employment. It was only created to claimcompensation.

7. Heard learned counsel for the parties and perused the record/relevant documents.

E8. From the facts on record, it is evident that Machindra AnandaJagtap died in a road accident on 17.08.1993.Immediately thereafter, hislegal heirs filed a claim petition under Section 166 of the 1988 Act beforethe MACT, Hukkeri in 1993 bearing MACP No. 1458 of 1993. Samewas adjudicated upon by the Tribunal vide Award dated 7.3.2003 awardedcompensation of 81,600/- was assessed to be payable to the appellants.FThe award of the Tribunal attained finality as nothing was pointed out atthe time of hearing that it was challenged any further. Thereafter, theappellants filed application before the Commissioner seekingcompensation under the provisions of the 1923 Act. However, a perusalof the order passed by the Commissioner shows that the claim petitionGwas dismissed as the appellants had exercised the option for claimingthe compensation under the Motor Vehicles Act, 1988 and hence theycould not claim benefit under the 1923 Act. However, the fact remainsthat the aforesaid findings recorded by the Commissioner were set asideby the High Court and the application was held to be maintainable againstHwhich no appeal has been filed by the aggrieved party. The Commissioner SHANTABAI ANANDA JAGTAP & ANR. v. JAYRAM GANPATIJAGTAP & ANR. [RAJESH BINDAL, J.]

had dismissed the application on the ground of delay also. Besides thiseven employer and employee relationship was not proved to claimcompensation. The High Court upheld the findings of the Commissioneron the delay in filing of claim petition. However, nothing was discussedon the issue of employer and employee relationship.

9. Two issues arise in the present appeal. Firstly, whether therewas sufficient cause for condonation of approximately 9 years and fivemonths delay in filing the Application before the Commissioner underthe 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 employerand employee between the deceased and the respondent no.1-JayramGanpati Jagtap needs to be considered first.

11. As far as the relationship is concerned, the Commissioner hadframed the following issue:

“Do the Applicants prove that, the accident of deceased was aroseduring the course of and out of his employment with OpponentNO.1?”

12. In the evidence led by the appellant no.1, she admitted in hercross-examination that the owner of the vehicle was brother of herhusband. It was further admitted that they were having common rationcard. They were members of the same Joint Hindu family. Salarycertificate of the deceased was produced on record, however the samewas not proved. There is nothing to suggest that the so-called employerhad admitted the relationship of master and servant. Even before thisCourt, the learned counsel for the appellants has not been able to referthe evidence produced on record to show that there existed the masterand servant relationship between the deceased and the respondent no.1,namely, the owner of the vehicle who has not chosen to put in appearancedespite service.

13. The conduct of the parties it is evident from the award of theTribunal where with a view to receive compensation from the offendingvehicle, the owner of the vehicle had appeared in the witness box andstated that he was paying salary of 2,000/- to the deceased and a dailyallowance of 25/-. In case that was so, nothing prevented the owner ofthe vehicle, who is said to be the employer, to have appeared before theCommissioner and admitted the relationship of employer and employee.

AIn fact, the conduct of the parties now shows that they intended to claimcompensation from the offending vehicle. In a calculated move, no claimwas made against the owner of the vehicle or the Insurance Companyof the vehicle, being driven by the deceased, before the Tribunal.

14. The relationship of employer and employee has not been provedBbefore the Commissioner. In our opinion, the same being the basicrequirement to be fulfilled for claiming compensation under the 1923Act, the appellants may not be entitled to receive any compensation.

15. Even on the ground of delay in filing the application before theCommissioner i.e. 02.08.2004 also, the same deserves to be dismissed.CCase set up by the appellants themselves was that they had not claimedany compensation against the owner of the vehicle, who is alleged to bethe employer, while filing application before the Tribunal. It was for thereason that they wished to claim compensation under the 1923 Act.Once that was so, this fact being in their knowledge from the verybeginning, delay of 9 years in filing application under the 1923 Act, isDcertainly fatal for consideration of the claim by the appellants for awardof compensation. In fact, the application before the Commissioner wasfiled only after the proceedings in the Motor Accident Claims Tribunalwere concluded on 07.02.2003 and the appellants were not able to getany compensation in execution. The application before the CommissionerEwas filed on 02.08.2004. Therefore, in our opinion, no sufficient cause isestablished for condonation of delay in filing the application.

16. For the reasons mentioned above, we do not find any infirmityin the impugned order. The appeal is accordingly dismissed. There shallbe no order as to costs.

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeal dismissed.