Bombay High Court
Shivaji Sambhaji Khule vs The Superintendent Engineer, ... on 18 August, 2025
2025:BHC-AUG:22558
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
19 FIRST APPEAL NO. 3559 OF 2023
WITH
CIVIL APPLICATION NO. 13322 OF 2021
IN FA/3559/2023
SHIVAJI SAMBHAJI KHULE
VERSUS
THE SUPERINTENDENT ENGINEER, M.S.E.D.C. LTD., AHMEDNAGAR AND
ANR
Mr. 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, 2025
PER COURT :-
1. By consent of both sides, this Appeal is heard finally at the
stage of admission.
2. This Appeal takes exception to the judgment and award
dated 19th August, 2013 passed by the Commissioner for Workmen's
Compensation and Judge, 2nd Labour Court, Ahmednagar in Misc.
Application (WC) No. 06/2013, dismissing the Application on the ground
that the claim has been made belatedly after 20 years of the occurrence
of the accident.
3. At the outset learned Counsel for the Petitioner submits, on
instructions, submits that the Petitioner is ready to waive the interest on
19 FA 3559.2023odt 1 of 6
compensation if granted to him for the entire period. He submits that the
provisions of the Workmen's Compensation Act (for short 'the Act') is a
welfare legislation and that proviso to Section 10 of the Act permits
condonation of delay even if the claim has not been preferred within a
period of two years from the occurrence of the accident. It is his
submission that the Petitioner was paid medical benefits as well the leave
wages by accepting the fact that the accident in question has occurred
during the course of the employment on 12/09/1990. It is his submission
that the Petitioner has made several representations in order to seek to
claim of compensation and hence, ultimately Application came to be filed
in the year 2013. To support his submission, he has placed reliance on
following 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 Workmens
Compensation, Thane and others, 2003(2) Bom.C.R. 367.
4. Learned Counsel for the Respondents opposes the Petition
essentially on the ground that once the dispute is made with regard to
the nature of accident and as to whether the accident involves
negligence of the Petitioner, the Respondent cannot be called upon to
defend the said claim now practically after 32 years of the occurrence of
19 FA 3559.2023odt 2 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 defend
such claim.
5. There cannot be any dispute made with regard to the
proposition sought to be canvassed by the learned Counsel for the
Petitioner that the Act with the welfare legislation. Since it provides for
financial relief to workmen who suffer injuries due to accident arising out
of and during the course of employment. Though the Act provides for
period of limitation of two years to prefer an Application for
compensation from the date of occurrence of the accident, it further
provides for condonation of delay in appropriate case. However, question
arises as to whether any amount of delay could be condoned. Since no
outer limit has been prescribed, in appropriate cases the delay could be
condoned provided that the situation of the employer has not changed.
6. Herein this case, the accident has admittedly occurred on
12/09/1990. Further admittedly the Petitioner has sustained injuries
therein which has resulted into the amputation of his left hand. On the
basis of the medical certificate, his earned leave was sanctioned. Thus
relying upon these facts it is sought to be argued that once there is no
dispute about the fact of the occurrence of the accident and causing of
the injuries to the Petitioner during the course of the employment
19 FA 3559.2023odt 3 of 6
coupled with the grant of medical benefits and leave, it is a fit case for
condonation of delay.
7. The grant of medical benefits and leave cannot be equited to
the entitlement of the compensation under the provisions of the Act. It is
not in dispute that if the accident has occurred due to the negligence on
the part of the employee, he is not entitled to seek compensation. In this
regard by communication dated 10/08/2005 it was specifically informed
to the Petitioner that though the accident has occurred prior to 14 years,
Petitioner is held to be responsible for the occurrence of the accident as
reported by the then Executive Engineer. On this ground, the claim for
compensation was rejected.
8. This communication indicates that though the occurrence of
the accident and causing of the injuries and disability is not in dispute,
there is a serious dispute made with regard to the entitlement of the
compensation for the reason that the Petitioner himself is responsible for
the accident. Admittedly, on account of disability, the Petitioner was
provided light job and continued in service.
9. Since dispute has been made long back by the employer
about the accident being caused due to the negligence of Petitioner, this
stand cannot be treated as an after thought. Before authority under the
19 FA 3559.2023odt 4 of 6
Act, when dispute would be adjudicated, employer must be in a position
to defend the same, with evidence. It cannot be expected that the
documents/evidence would be available with employer for indefinite
period. In such circumstances, now after 32 years the Respondent
cannot be called upon to defend the said claim. This Court finds
substance in the contention of the learned Counsel for the Respondent
that owing to the long period passed in between, the evidence in order to
prove 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 Mary
Tayade (supra), there was no dispute with regard to the entitlement of
the deceased to get compensation under the Act. The compensation was
denied by the employer on the belief that the compassionate
appointment of the son of the deceased disentitles him the compensation
under the Act. Thus, in that case five years delay was condoned,
however, the issue of determination of the negligence was not involved
therein. In fact it is specifically observed that there was no deliberate
negligence on the part of deceased Petitioner in occurrence of the
accident. Similarly, from the other judgments cited supra it cannot be
said that the issue of negligence was involved and the employer was
called upon to substantiate the negligence after lapse of considerable
time.
19 FA 3559.2023odt 5 of 6
11. Though the Courts are expected to be liberal in condoning
the delay in case of the welfare enactments in favour of the workmen,
however, this cannot be done in all cases and more particularly when the
position of the employer is changed in terms of maintenance of the
record, it would be impressible to the considered view of this Court to
call upon the employer to defend such claim after lapse of 32 years as in
this case. In so far as the waive of interest is concerned, though this
could 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 to
prove the negligence of the employee after a lapse of 32 years. This
Court, therefore, finds no reason to cause interference in the impugned
order.
12. Hence, Petition stands dismissed. Pending Civil Application, if
any, stands disposed of.
(R. M. JOSHI, J.)
ssp
19 FA 3559.2023odt 6 of 6
