Gujarat High Court
Lakhiben Kubarbhai Rathod vs Hussainbhai Yusufbhai Divan on 22 November, 2021
Bench: A.S. Supehia
C/SCA/5196/2010 ORDER DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5196 of 2010
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LAKHIBEN KUBARBHAI RATHOD
Versus
HUSSAINBHAI YUSUFBHAI DIVAN & 1 other(s)
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Appearance:
MR RAMNANDAN SINGH(1126) for the Petitioner(s) No. 1
MR PALAK H THAKKAR(3455) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 22/11/2021
ORAL ORDER
[1] The present petition has been filed seeking
the following prayers:-
"12(A) Your Lordships be pleased to issue writ of certiorari or any
other appropriate writ order or direction and be pleased to
quash the impugned order dated 29.07.2006 passed in WC
Application No.46 of 1994 by Commissioner under Workman
Compensation Act, Labour Court No.1, Bharuch.
(B) Your Lordship may be pleased to allow the application for
condonation of delay in filing the workman claim application
No.46 of 1994 before Labour Court, Bharuch.
(C) Your Lordships may be pleased to condone the delay in filing
the present Special Civil Application considering the bonafide
mistake of the office staff of the advocate for the petitioner."
[2] Though served, no one has entered appearance
on behalf of the respondent no.1.
[3] It is the case of the petitioner that that
petitioner's husband namely Kuberbhai Rathod was
C/SCA/5196/2010 ORDER DATED: 22/11/2021
employed as a driver to drive the vehicle of
respondent no.1 and he met with an accident on
21.07.1987 and he passed away on the same day. It
is submitted that the petitioner has filed
Workman Compensation Claim Application No.46 of
1994 before the Commissioner for Workmen's
Compensation at Bharuch, claiming Rs.2,14,139.60
as compensation for death.
[4] Learned advocate Mr.Ramnandan Singh for the
petitioner has submitted that since there was a
delay in filing the claim application, an
application for condonation of delay was filed.
It is submitted that by the impugned order dated
29.07.2006, the application seeking condonation
of delay was rejected.
[4.1] At the outset, learned advocate
Mr.Ramnandan Singh, on instructions, has
submitted that the applicant is ready to forego
the penalty as well as the interest on the amount
of Rs.2,14,139.60 from the year 1987 till the
claim application is decided on merits. He has
submitted that the applicant is a poor illiterate
widow and after she was informed with regard to
the proceedings to be filed in the case of
accident, she has approached belatedly in the
year 1994 seeking compensation.
C/SCA/5196/2010 ORDER DATED: 22/11/2021
[4.2] Learned advocate for the petitioner has
submitted that it is not in dispute that the
husband of the petitioner was engaged as a driver
by the respondent no.1 and he was driven a
Vehicle bearing No.GTJ 7194 and he passed away
during the course of employment. Thus, he has
submitted that the matter may be remanded by
setting aside the impugned order of compensation
and the Labour Court, Bharuch may be directed to
decide the application on merits.
[4.3] Learned advocate Mr.Ramnandan Singh, in
support of his submissions, placed reliance on
the judgment of the Coordinate Bench in the case
of Maheshbhai Harkishanbhai Belani vs. Suleman
Ishak Dhudha reported in 2011 (4) GLR 3372 and on
the decision dated 22.09.2012 of the Karnataka
High Court in the case of Sri M.C.Annapa vs.
Salvadar John Pinto passed in MFA No.11642 of
2006 (WC).
[5] Per contra, learned advocate Mr.Palak Thakkar
for the respondent no.2 has submitted that as per
the provisions of Section 10 of the Workmen's
Compensation Act, 1923, the period of limitation
to file a claim application is two years and
hence, the present writ petition may not be
entertained.
C/SCA/5196/2010 ORDER DATED: 22/11/2021
[6] Heard the learned advocates for the
respective parties.
[7] Though served, respondent no.1 has chosen not
to appear before this Court to contest the
petition.
[7.1] It is a specific case of the petitioner
that her husband was engaged by the respondent
no.1 as a driver and while in employment, he met
with the fatal accident on 21.07.1987 and was
passed away on the same day. The petitioner is an
illiterate widow lady and it is not denied that
after she was informed for filing such
application for Compensation, she approached the
Commissioner for compensation under the Workmen's
Compensation Act, 1923, by filing WC Application
No.46 of 1994. Since there was a delay in filing
the claim application, she also filed an
application for condonation of delay. As per the
provisions of Section 10 of the Workmen's
Compensation Act,1923, such application has to be
filed during the period of two years. In the
present case, it is noticed that there is total
delay of 7 years from the date of accident but if
limitation period of two years is considered,
there is actual delay of 5 years. The petitioner
has also specifically stated that she will not be
claim any interest or penalty on the amount of
C/SCA/5196/2010 ORDER DATED: 22/11/2021
claim in the application till her claim
application decides on merits.
[8] In the considered opinion of this Court and
looking to the aforesaid facts as well as
statement made by the petitioner and looking to
her social status, this Court is of the opinion
that the delay is required to be condoned. As a
sequel the impugned order dated 29.07.2006 is
hereby quashed and set aside. The matter is
remanded to the Commissioner to decided
Application No.46 of 1994 on merits, after giving
appropriate opportunity to the parties concerned.
It is clarified that the petitioner will not be
entitled to any interest and penalty on the
amount claimed by her in the application from
1997 till the claim application is decided on
merits. Since the application is of 1994, the
Employees Compensation Commissioner, Bharuch,
shall decide the application within a period of
three months. The present order is passed in
light of the peculiar facts and shall not be
treated as precedent.
[9] With the aforesaid directions, the present
petition is disposed of. Rule is made absolute to
the aforesaid extent.
(A. S. SUPEHIA, J)
NABILA
