IMPORTANT POINT
Relationship of employer and employee is a basic requirement to be fulfilled for claiming compensation under Employees Compensation Act, 1923.

JUDGMENT :

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 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 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 Rs.1,13,855/- along with interest and penalty was made. The application was filed with the Commissioner on 02.08.2004 under the 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 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 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 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 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. In fact, the family of the deceased was left high and dry after the death of a young bread earner 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 Rs.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.

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 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.

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 Rs.81,600/- was assessed to be payable to the appellants. The award of the Tribunal attained final