High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD19 FIRST APPEAL NO. 3559 OF 2023WITHCIVIL APPLICATION NO. 13322 OF 2021 IN FA/3559/2023SHIVAJI SAMBHAJI KHULEVERSUSTHE SUPERINTENDENT ENGINEER, M.S.E.D.C. LTD., AHMEDNAGAR ANDANRMr. R. L. Kute, Advocate for the Appellant Mr. U. S. Malte, Advocate for Respondent Nos.1 and 2 (Through VC)CORAM: R. M. JOSHI, J.DATE: 18th AUGUST, 2025PER COURT :-1.By consent of both sides, this Appeal is heard finally at thestage of admission.2.This Appeal takes exception to the judgment and awarddated 19th August, 2013 passed by the Commissioner for Workmen’sCompensation and Judge, 2nd Labour Court, Ahmednagar in Misc.Application (WC) No. 06/2013, dismissing the Application on the groundthat the claim has been made belatedly after 20 years of the occurrenceof the accident.3.At the outset learned Counsel for the Petitioner submits, oninstructions, submits that the Petitioner is ready to waive the interest on19 FA 3559.2023odt1 of 6
Legal Reasoning
compensation if granted to him for the entire period. He submits that theprovisions of the Workmen’s Compensation Act (for short ‘the Act’) is awelfare legislation and that proviso to Section 10 of the Act permitscondonation of delay even if the claim has not been preferred within aperiod of two years from the occurrence of the accident. It is hissubmission that the Petitioner was paid medical benefits as well the leavewages by accepting the fact that the accident in question has occurredduring the course of the employment on 12/09/1990. It is his submissionthat the Petitioner has made several representations in order to seek toclaim of compensation and hence, ultimately Application came to be filedin the year 2013. To support his submission, he has placed reliance onfollowing judgments:-(i)Suresh Kumar Vs. State of Haryana and Ors. in SLP (C) NO.670/2020,(ii)Smt. Lilabai V. Mehrban Singh, Aironline 2019 MP 726,(iii)Anu Mary Tayade Vs. Commissioner of WorkmensCompensation, Thane and others, 2003(2) Bom.C.R. 367.4.Learned Counsel for the Respondents opposes the Petitionessentially on the ground that once the dispute is made with regard tothe nature of accident and as to whether the accident involvesnegligence of the Petitioner, the Respondent cannot be called upon todefend the said claim now practically after 32 years of the occurrence of19 FA 3559.2023odt2 of 6 the accident. It is his submission that the evidence, document etc.,cannot be said to be available with the Respondent in order to defendsuch claim.5.There cannot be any dispute made with regard to theproposition sought to be canvassed by the learned Counsel for thePetitioner that the Act with the welfare legislation. Since it provides forfinancial relief to workmen who suffer injuries due to accident arising outof and during the course of employment. Though the Act provides forperiod of limitation of two years to prefer an Application forcompensation from the date of occurrence of the accident, it furtherprovides for condonation of delay in appropriate case. However, questionarises as to whether any amount of delay could be condoned. Since noouter limit has been prescribed, in appropriate cases the delay could becondoned provided that the situation of the employer has not changed.6.Herein this case, the accident has admittedly occurred on12/09/1990. Further admittedly the Petitioner has sustained injuriestherein which has resulted into the amputation of his left hand. On thebasis of the medical certificate, his earned leave was sanctioned. Thusrelying upon these facts it is sought to be argued that once there is nodispute about the fact of the occurrence of the accident and causing ofthe injuries to the Petitioner during the course of the employment19 FA 3559.2023odt3 of 6 coupled with the grant of medical benefits and leave, it is a fit case forcondonation of delay.7.The grant of medical benefits and leave cannot be equited tothe entitlement of the compensation under the provisions of the Act. It isnot in dispute that if the accident has occurred due to the negligence onthe part of the employee, he is not entitled to seek compensation. In thisregard by communication dated 10/08/2005 it was specifically informedto the Petitioner that though the accident has occurred prior to 14 years,Petitioner is held to be responsible for the occurrence of the accident asreported by the then Executive Engineer. On this ground, the claim forcompensation was rejected.8.This communication indicates that though the occurrence ofthe accident and causing of the injuries and disability is not in dispute,there is a serious dispute made with regard to the entitlement of thecompensation for the reason that the Petitioner himself is responsible forthe accident. Admittedly, on account of disability, the Petitioner wasprovided light job and continued in service.9.Since dispute has been made long back by the employerabout the accident being caused due to the negligence of Petitioner, thisstand cannot be treated as an after thought. Before authority under the19 FA 3559.2023odt4 of 6 Act, when dispute would be adjudicated, employer must be in a positionto defend the same, with evidence. It cannot be expected that thedocuments/evidence would be available with employer for indefiniteperiod. In such circumstances, now after 32 years the Respondentcannot be called upon to defend the said claim. This Court findssubstance in the contention of the learned Counsel for the Respondentthat owing to the long period passed in between, the evidence in order toprove the negligence on the part of the Petitioner is not available.10.In so far as the judgment of this Court in case of Anu MaryTayade (supra), there was no dispute with regard to the entitlement ofthe deceased to get compensation under the Act. The compensation wasdenied by the employer on the belief that the compassionateappointment of the son of the deceased disentitles him the compensationunder the Act. Thus, in that case five years delay was condoned,however, the issue of determination of the negligence was not involvedtherein. In fact it is specifically observed that there was no deliberatenegligence on the part of deceased Petitioner in occurrence of theaccident. Similarly, from the other judgments cited supra it cannot besaid that the issue of negligence was involved and the employer wascalled upon to substantiate the negligence after lapse of considerabletime.19 FA 3559.2023odt5 of 6
Decision
11.Though the Courts are expected to be liberal in condoningthe delay in case of the welfare enactments in favour of the workmen,however, this cannot be done in all cases and more particularly when theposition of the employer is changed in terms of maintenance of therecord, it would be impressible to the considered view of this Court tocall upon the employer to defend such claim after lapse of 32 years as inthis case. In so far as the waive of interest is concerned, though thiscould be a considered as a positive gesture on the part of the Petitioner,still the issue remains as to whether the employer can be called upon toprove the negligence of the employee after a lapse of 32 years. ThisCourt, therefore, finds no reason to cause interference in the impugnedorder.12.Hence, Petition stands dismissed. Pending Civil Application, ifany, stands disposed of.(R. M. JOSHI, J.)ssp19 FA 3559.2023odt6 of 6