SHANTABAI ANANDA JAGTAP & ANR.versusJAYRAM GANPATI JAGTAP & ANR.

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


            SHANTABAI ANANDA JAGTAP & ANR.                                A
                                  v.
              JAYRAM GANPATI JAGTAP & ANR.
                   (Civil Appeal No. 5786 of 2012)
                           JULY 04, 2023                                  B
         [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
       Employees Compensation Act, 1923: Compensation – Claim
for – Death of victim during the course of employment in a road
accident while driving jeep owned by the respondent no.1 – Claim
                                                                          C
for compensation by the legal heirs – Award of compensation by
the tribunal, only against the owner of the vehicle, however, the
order not executed – Appellants then filed claim petition before the
Commissioner and the same was dismissed on account of delay as
well as on merits – High Court upheld the findings on the delay in
filing the claim petition, however, no order passed as regards the        D
merits of the case – On appeal, held: Relationship of employer and
employee between the deceased and the respondent no. 1 not proved
before the Commissioner, which is the basic requirement to be fulfilled
for claiming compensation under the 1923 Act – Also, no sufficient
cause established for condonation of delay in filing the application
                                                                          E
– 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, she           F
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                   G
relationship of master and servant. Even before this Court, 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             H
                                  95
96            SUPREME COURT REPORTS                     [2023] 10 S.C.R.


A    appearance despite service. 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. [Paras 12,
B    13][99-E-H]
            1.2 The relationship of employer and employee has not been
     proved before the Commissioner. The same being the basic
     requirement to be fulfilled for claiming compensation under the
     Employees Compensation Act, 1923, the appellants may not be
C    entitled to receive any compensation. [Para 14][100-B]
            1.3 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
D    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 certainly fatal for
     consideration of the claim by the appellants for award of
     compensation. In fact, the application before the Commissioner
E    was filed on 02.08.2004, only after the proceedings in the tribunal
     were concluded on 07.02.2003 and the appellants were not able
     to get any compensation in execution. Therefore, no sufficient
     cause is established for condonation of delay in filing the
     application. Thus, there is no infirmity in the impugned order.
     [Paras 15, 16][100-C-E]
F
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5786
     of 2012.
          From the Judgment and Order dated 09.04.2010 of the High Court
     of Bombay in FA No. 591 of 2009.
G          Abdulrahiman Tamboli, Rahul Joshi, Shivaji M. Jadhav, Advs. for
     the Appellants.
          Ravi Bakshi, Ms. Sayma Feroz, Yash Pal Dhingra, Advs. for the
     Respondents.

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SHANTABAI ANANDA JAGTAP & ANR. v. JAYRAM GANPATI                              97
        JAGTAP & ANR. [RAJESH BINDAL, J.]

      The Judgment of the Court was delivered by                              A
      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                B
impugned by the legal heirs of the workman.
       2. It is a case in which an application was filed by the legal heirs
of the deceased Machindra Ananda Jagtap, who died in a road accident
while driving jeep no.MH-10-8363 on 17.08.1993. The jeep was owned
by Jayram Ganpati Jagtap and insured with the United India Insurance          C
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           D
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           E
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       F
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 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        G
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
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98             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A    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. Infact, the family of the
     deceased was left high and dry after the death of a young bread earner
B    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.

C          5. No one has appeared for respondent no.1/ the employer despite
     service.
              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
D
     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.
E           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.
F
     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
G    was dismissed as the appellants had exercised the option for claiming
     the compensation under the Motor 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
H    which no appeal has been filed by the aggrieved party. The Commissioner
SHANTABAI ANANDA JAGTAP & ANR. v. JAYRAM GANPATI                            99
        JAGTAP & ANR. [RAJESH BINDAL, J.]

had dismissed the application on the ground of delay also. Besides this     A
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     B
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       C
and employee between the deceased and the respondent no.1-Jayram
Ganpati Jagtap needs to be considered first.
      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     D
      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        E
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    F
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
                                                                            G
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
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.        H
100             SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     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
B     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.
C     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
D     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
E     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.
F
      Nidhi Jain                                                  Appeal dismissed.
      (Assisted by : Tamana, LCRA)




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