[Cites 12, Cited by 0]
Bombay High Court
Parveen Banu Nasir Khan And Anr vs Vahaanvatti Sizers And Anr on 12 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:12073
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Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 18070 OF 2024
Digitally
1. Parveen Banu Nasir Khan,
signed by
SAYALI Age - 50 years, Loya Road,
SAYALI DEEPAK
DEEPAK UPASANI Ramabai Ambedkar Colony,
UPASANI Date:
2026.03.12
11:57:12
+0530
Igatpuri, Nashik, Maharashtra -
422 403.
2. Raeesa Rajubhai Mulla,
Age - 45 years, Umersheth,
Chawl, Shastri Nagar, Bhiwandi,
Tal. - Bhiwandi, Dist. Thane. ... Petitioners
V/s.
1. Vahaanvatti Sizers,
H. No. 32,33, Vishnu Compound,
Near Telavane Medical Stores,
24/2, Aasbibi, Kalyan Road,
Bhiwandi, Dist. Thane - 421 302.
2. New India Assurance Co. Ltd.,
Dombivli Divisional Office,
Raghukul Heights, B Wing,
1st Floor, Dr. R.P. Road, Above
Jaoli Bank, Dombivli (East),
Dist. Thane - 421 201. ... Respondents
Ms. Seema Chopda for the Petitioner.
Mr. Devendranath Joshi for the Respondent No.2.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 5, 2026
PRONOUNCED ON : MARCH 12, 2026
1
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JUDGMENT:
1. The present petition is instituted under Articles 227 read
with Article 300A of the Constitution of India. By this petition, the
Petitioners seek to challenge the order dated 27 January 2022
passed by the Commissioner under the Employees' Compensation
Act, 1923 in Application (ECA) No. 48/B-6/2019. By the said
order, the Commissioner declined the request of the Petitioners to
be impleaded as legal heirs of the deceased applicant in the
pending proceedings under the Employees' Compensation Act.
2. The material facts giving rise to the present petition are set
out herein below. Late Mr. Ismail Abbas Sayed was employed with
Respondent No.1 as an operator for a period of approximately ten
years preceding the incident. His last drawn monthly wages were
stated to be Rs.12,500/-. The deceased continued in service with
Respondent No.1 until 30 August 2017. The record indicates that
the deceased was born in the year 1951 and was about 66 years of
age at the time of the accident. On 30 August 2017 at about 5.30
p.m., the deceased was performing his regular duties in the factory
premises of Respondent No.1 and was operating a sizing machine
in accordance with the instructions issued by the employer. After
completing the assigned work on the said machine, the deceased
was descending the stairs attached to the machine. At that stage he
allegedly lost his balance and, while attempting to steady himself,
his hand came in contact with a tube light, resulting in an electric
shock. Owing to the shock, he fell from the machine and sustained
a fall on his head. The fall occurred from a height and resulted in
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serious injuries to his neck and severe impairment to his limbs,
including both hands and legs. Immediately thereafter, the co-
workers present at the factory shifted him to Prime Hospital at
Bhiwandi where he was administered primary medical treatment.
Subsequently, he was transferred to Zynova Shalby Hospital at
Ghatkopar for further specialised treatment. The medical record
indicates that the injuries suffered by him included cervical
compression of the spine with myelopathy accompanied by
quadriparesis, affecting all four limbs. The deceased remained
admitted at Zynova Shalby Hospital for approximately eight days.
However, his medical condition remained critical and reportedly
deteriorated with the passage of time. In view of the seriousness of
his condition, on 10 September 2017 the treating doctors advised
that he be shifted to Lokmanya Tilak Municipal General Hospital,
Sion, Mumbai for surgical intervention. Accordingly, he was
transferred to the said hospital. Despite medical treatment, the
injured employee succumbed to the injuries on 13 September
2017. The case of the claimants is that the death occurred as a
consequence of the accident which arose out of and in the course
of employment while the deceased was on duty with Respondent
No.1. It is further alleged that the incident occurred due to
negligence attributable to the employer. The Lokmanya Tilak
Municipal General Hospital issued a death certificate in the
prescribed police station form dated 13 September 2017. The
certificate records that the cause of death was cervical compression
of the spine with myelopathy with quadriparesis.
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3. After the death of the employee, one Najmunissa Ismail
Sayyed instituted an application under the Employees'
Compensation Act, 1923 before the Commissioner under the said
Act at the Labour Court, Thane. The application was registered as
Application (ECA) No.48/B-6/2019 and sought compensation
from the respondents under the provisions of the Act. The said
claim was contested by Respondent No.2, the insurer, which
entered appearance and filed its written statement opposing the
claim.
4. During the pendency of the said proceedings, the original
applicant Najmunissa Ismail Sayyed expired on 31 May 2021.
Thereafter, the present Petitioners, who claim to be the sisters of
the deceased applicant and daughters of the deceased employee,
filed an application before the Commissioner seeking to be
impleaded as parties to the said compensation proceedings in
place of their deceased sister. They also sought deletion of the
name of the deceased applicant from the cause title. The said
application was opposed by Respondent No.2. The insurer
contended that the Petitioners, being married daughters of the
deceased employee, could not be regarded as dependents upon the
deceased at the time of his death and, therefore, were not entitled
to claim or receive compensation under the provisions of the
Employees' Compensation Act. Upon hearing the parties, the
learned Commissioner rejected the application filed by the
Petitioners by order dated 27 January 2022.
5. Learned Advocate Ms. Seema Chopda appearing on behalf of
the Petitioners submits that the learned Commissioner has failed to
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properly appreciate the true object and scheme of the Employees'
Compensation Act, 1923. According to her, the Act is a beneficial
and social welfare legislation intended to provide financial relief
and protection to an employee who suffers an accidental injury
arising out of and in the course of employment. The legislation
also extends such protection to the dependents of the employee in
cases where the accident results in death. She submits that the
statutory scheme clearly provides that where an employee dies as a
result of an accident arising out of and in the course of
employment, the dependents as defined under Section 2(1) of the
Act become entitled to receive compensation in accordance with
the provisions contained in the statute.
6. Learned counsel further submits that the Petitioners, namely
Mrs. Parveen Banu Nasir Khan and Mrs. Raeesa Rajubhai Mulla,
are the married daughters of the deceased employee. She submits
that the third sister, Najmunissa Ismail Sayed, remained unmarried
during her lifetime and was wholly dependent upon the deceased
employee at the relevant time. It is her contention that
Najmunissa, being unmarried and not gainfully employed,
squarely fell within the category of a dependent under the Act and
was therefore entitled to claim and receive compensation arising
out of the accidental death of the employee. It is further submitted
that although the widow of the deceased employee was otherwise
entitled to claim compensation as a dependent, she expired on 15
November 2018, which was prior to the filing of the compensation
application. Thereafter, Najmunissa Ismail Sayed instituted the
claim application under the Employees' Compensation Act.
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However, during the pendency of the said proceedings, Najmunissa
died intestate on 31 May 2021. According to the Petitioners, upon
her demise she was survived by her two married sisters, who are
the present Petitioners. Learned counsel for the Petitioners submits
that the learned Commissioner ought to have appreciated that
where a claimant who is entitled to receive monetary benefits dies
during the pendency of the proceedings, the legal representatives
or legal heirs of such claimant are entitled to prosecute the
proceedings further. According to her, the right to pursue a
monetary claim which had already accrued to the deceased
claimant survives to the legal heirs and cannot be extinguished
merely on account of the death of the claimant during the
pendency of the proceedings.
7. It is further contended that the Commissioner failed to
appreciate that although the Petitioners themselves may not
independently qualify as dependents of the deceased employee
within the meaning of the Act, they are nevertheless entitled to
pursue the claim in their capacity as legal heirs of the deceased
applicant who was otherwise eligible and entitled to claim
compensation as a dependent of the deceased employee.
8. Learned counsel submits that the reasoning adopted by the
Commissioner leads to an anomalous situation. She submits that if
the claim application had been finally adjudicated during the
lifetime of the dependent claimant Najmunissa and if she had
thereafter expired before actually receiving the compensation
amount, it would be wholly unreasonable to hold that the amount
already awarded would become incapable of being received by her
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legal heirs merely because they were not dependents of the
deceased employee. In support of the above submissions, learned
counsel for the Petitioners has placed reliance upon the judgment
of the Supreme Court in the case of Manjuri Bera (Smt.) v. Oriental
Insurance Company Ltd. and Another reported in (2007) 10 SCC
643. and Royal Sundaram Alliance Insurance Co. Ltd., Chennai v.
Madhu @ Mahadev s/o Govindrao Newade (2016) 3 Mah LJ 102.
9. Per contra, Mr. Devendranath Joshi, learned Advocate
appearing for Respondent No.2, submits that the expression
"dependent" has been specifically defined under Section 2(d) of
the Employees' Compensation Act, 1923. The provision
enumerates an exhaustive list of relatives who may fall within the
ambit of the expression "dependent" of a deceased employee. The
statutory definition includes, inter alia, the widow, a minor
legitimate or adopted son, an unmarried legitimate or adopted
daughter, and a widowed mother. It further includes certain other
relatives such as a son or daughter above eighteen years of age
who is infirm and wholly dependent upon the earnings of the
employee at the time of death. The provision also includes certain
other categories of relatives who may qualify as dependents if they
were wholly or partly dependent upon the earnings of the
deceased employee at the relevant time. Learned counsel for
Respondent No.2 submits that the present Petitioners do not fall
within any of the categories specified in the statutory definition of
"dependent". According to him, it is not the case of the Petitioners
that they were wholly dependent upon the earnings of the
deceased employee at the time of his death. Consequently, the
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provision contained in Section 2(d)(ii) of the Act cannot be
invoked in their favour. He further submits that Section 2(d)(i) of
the Act specifically includes only an unmarried daughter within the
category of dependents and does not extend the benefit to married
daughters. In view of the clear statutory language, the scope of the
provision cannot be enlarged so as to include married daughters
within its ambit. Therefore, according to the learned counsel, the
Petitioners do not satisfy the statutory requirements necessary to
qualify as dependents under the Act. Learned counsel further
submits that compensation under the Employees' Compensation
Act is payable on account of the injury suffered by the employee
arising out of and in the course of employment. According to him,
the claim for compensation essentially relates to the pecuniary loss
caused by such injury or death. He submits that the amount of
compensation represents a monetary claim arising out of such
injury and, therefore, the entitlement to receive such
compensation must strictly conform to the categories of persons
recognised by the statute.
REASONS AND ANALYSIS:
10. I have heard learned counsel for the parties and considered
their rival contentions. I have also perused the record. The facts
are not in dispute. An application under the Employees'
Compensation Act was filed by Najmunissa Ismail Sayed during
her lifetime. She claimed compensation as a dependent of the
deceased employee. While those proceedings were pending she
died on 31.05.2021. The Petitioners are her two married sisters.
They applied before the Commissioner to be impleaded as parties
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and to prosecute the claim in place of their deceased sister. The
Commissioner rejected that application by order dated 27.01.2022.
This petition challenges that rejection.
11. I start with the statutory scheme of the Employees'
Compensation Act. The Act provides a mechanism for payment of
compensation where injury or death occurs during the course of
employment. Section 4 lays down the manner in which
compensation is to be determined. Section 4A recognises that the
compensation becomes payable as soon as the liability arises.
When an accident occurs in the course of employment and the
employee sustains injury, the liability to pay compensation arises
from that moment. Section 8 of the Act applies where the injury
sustained by the employee results in death. In such cases the Act
provides that the compensation amount must be deposited before
the Commissioner and then distributed among the dependents of
the deceased employee. The legislature has thus created a
mechanism to ensure that the family members who were
dependent on the earnings of the employee receive the benefit of
compensation. Section 10 provides the procedure through which a
claim for compensation is to be made before the Commissioner.
The application for compensation is a mode through which the
statutory right is ajudicated. Finally, Section 2(1)(d) defines the
expression "dependent". This provision lists the categories of
relatives who are legally recognised as dependents of a deceased
employee. These provisions must be read together in order to
understand the scheme and purpose of the Act.
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12. When these provisions are examined together, it
contemplates two situations. The first situation arises when the
employee dies as a result of the accident. In that situation the
statute specifically identifies who can claim compensation. The
definition of "dependent" in Section 2(1)(d) then becomes
relevant because the compensation is intended for those persons
who relied on the earnings of the deceased employee. The second
situation arises when the employee suffers injury but survives and
himself or herself files a claim for compensation. In that case the
right to claim compensation belongs to the injured employee
personally. The statute allows the injured employee to seek
compensation for the injury suffered in the course of employment.
The problem arises only when the injured claimant dies before the
claim is finally decided. At that stage the question naturally arises
whether the claim itself comes to an end or whether it can be
continued by the legal representatives of the deceased claimant.
13. The old common law maxim that a personal action dies with
the person cannot be applied in every situation. such a rule should
not be applied when it leads to injustice or defeats the purpose of a
beneficial statute. The Employees' Compensation Act is a piece of
welfare legislation intended to provide monetary relief in cases of
employment related injury. If a claim is properly instituted by an
injured person during his or her lifetime, the right to pursue that
claim normally survives to the estate of the claimant.
14. This principle has been clearly explained in the decision in
Royal Sundaram Alliance Insurance Co. Ltd. v. Madhu @ Mahadev .
In that case the Court examined the provisions of the Act in detail.
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The Court noted that the Act distinguishes between claims arising
out of death and claims made by an injured employee. The Court
further observed that when the injured employee himself files a
claim and subsequently dies during the pendency of the
proceedings, the statute does not prohibit the legal representative
from continuing those proceedings. The Court also distinguished
earlier cases where compensation claims were filed directly by
persons who were not dependents of the deceased employee. In
such cases the claim itself was not maintainable because the
statute limits the class of persons entitled to claim compensation
for death. However, where the claim was instituted by the injured
employee himself, the position is different. The Court therefore
held that the legal representative of the deceased injured employee
can be brought on record and can continue the proceedings and
receive the compensation that may be awarded.
15. The argument advanced by the insurer would have some
force if the Petitioners were attempting to assert a fresh claim for
compensation as dependents of the deceased employee even
though they do not fall within the definition of "dependent". But
the facts here are different. The claim was not initiated by the
Petitioners. It was initiated by Najmunissa. According to the
pleadings she was an unmarried daughter and was dependent on
the deceased employee. On that basis she filed the claim
application before the Commissioner. The Petitioners are not
seeking to establish that they themselves are dependents of the
employee. Their case is narrower and more limited. They state that
Najmunissa had a valid claim which she had already filed during
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her lifetime, and after her death they should be permitted to
continue those proceedings as her legal heirs.
16. Viewed from this angle, the approach adopted by the
Commissioner appears to be incorrect. The Commissioner appears
to have concentrated only on the fact that the Petitioners are
married daughters of the deceased employee. On that basis the
Commissioner concluded that they could not be treated as
dependents and therefore could not be impleaded. This approach
overlooks the real issue that arises at the stage of impleadment.
The question at that stage is not whether the Petitioners
themselves are dependents of the employee. The real question is
whether the claim filed by Najmunissa survives after her death so
that her legal representatives may continue it. If the original
claimant had a valid claim which had already been instituted
before the competent authority, the legal representatives of that
claimant should normally be allowed to step into her place and
prosecute the proceedings.
17. It must also be remembered that allowing the legal
representatives to come on record does not automatically decide
the entire case in their favour. The merits of the claim remain open
for adjudication. The Commissioner will still have to determine
whether the accident occurred in the course of employment,
whether the deceased employee suffered injury leading to death,
and what amount of compensation is payable under the Act. If
compensation is ultimately awarded, questions relating to its
distribution or entitlement may still arise and will be governed by
the relevant legal principles. Those issues can be considered by the
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adjudicating authority at the appropriate stage.
18. For this reason the insurer's reliance on the definition of
"dependent" under Section 2(1)(d) is only partly relevant. That
provision determines who may claim compensation when the
employee has died and the claim is brought on behalf of the
dependents. It does not answer the separate issue whether a claim
already instituted by a dependent or injured person during his or
her lifetime can be continued by legal representatives after death.
Once it is accepted that the original claimant had a prima facie
right to pursue the claim, the fact that the legal heirs do not fall
within the category of dependents of the employee does not
automatically extinguish the proceedings.
19. Litigation before the Commissioner may take time. Evidence
has to be recorded and the facts have to be examined carefully. If
the law were interpreted in the manner suggested by the insurer, a
person who has already filed a valid claim could lose the benefit of
that claim merely because he or she dies before the case is finally
decided. Such a result would be contrary to the purpose of the
legislation. The Act is designed to provide financial relief arising
from employment related accidents. That objective would be
defeated if claims could extinguish merely because the claimant
died during the pendency of the proceedings.
20. In view of the foregoing discussion and reasons recorded
above, the following order is passed:
(i) The impugned order dated 27 January 2022 passed by
the Commissioner under the Employees' Compensation Act,
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1923 in Application (ECA) No. 48/B-6/2019 is quashed and
set aside.
(ii) The application filed by the Petitioners seeking their
impleadment as legal representatives of the deceased
applicant Najmunissa Ismail Sayed is allowed.
(iii) The Petitioners shall be brought on record in the said
proceedings in their capacity as legal heirs and legal
representatives of the deceased applicant Najmunissa Ismail
Sayed.
(iv) The Commissioner under the Employees'
Compensation Act, Thane, shall proceed to hear and decide
Application (ECA) No. 48/B-6/2019 on its own merits and in
accordance with law, after granting an opportunity of
hearing to all concerned parties.
(v) Considering that the proceedings are pending since the
year 2019, the Commissioner shall make an endeavour to
dispose of the said application as expeditiously as possible
and preferably within a period of six months from the date of
receipt of this order.
(vi) All contentions of the parties on the merits of the claim
are expressly kept open.
(vii) The writ petition is accordingly allowed in the above
terms. No order as to costs.
(AMIT BORKAR, J.)
