Bombay High Court
Kashmira Dinesh Shah. vs Shahaji Balbhim Gate And Anr on 2 February, 2026
2026:BHC-AUG:5275
CA-340-2025.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
19 CIVIL APPLICATION NO. 340 OF 2025
IN FAST/32964/2024
KASHMIRA DINESH SHAH
VERSUS
SHAHAJI BALBHIM GATE AND ANR
WITH
CIVIL APPLICATION NO. 341 OF 2025.
WITH
CIVIL APPLICATION NO. 9810 OF 2025
....
Mr. Sharikh Khan, Advocate for the Applicant
Mr. S. N. Patne, Advocate for Respondent No.1
Mr. S. R. Bodade, Advocate for Respondent No.2
....
CORAM : Y. G. KHOBRAGADE, J.
DATE : February 02, 2026
PER COURT :-
1. Heard the learned counsel for the applicant and the
learned counsel for the non-applicants, at length.
2. By the present application under Section 5 of the
Limitation Act, the applicant prays for condonation of 11 years 9
months and 7 days i.e. 4243 days caused while lodging the first
appeal against the judgment and award dated 18.02.2013, passed
in W.C.A. No.11 of 2011, by the learned Commissioner under the
Employee's Compensation and the Civil Judge, Senior Division,
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Osmanabad, thereby directed the present applicant to pay
compensation of Rs.4,38,500/- to the non-applicant with interest at
the rate 7.5% p.a. with effect from 09.03.2011 till the same is
deposited in the Court. It further directed the present applicant to pay
penalty of Rs.2,19,250/- under Section 4A(1)(3) of the Employee's
Compensation Act, 1923.
3. The learned counsel for the applicant canvassed that on
18.02.2013, the learned Commissioner under the Employee's
Compensation Act, 1923, passed the judgment and award. However,
the applicant has applied for grant of certified copies on 22.10.2024
and certified copies of the same were supplied to the applicant on
24.10.2024. Therefore, the appeal was to be presented within a
period of 60 days. However, the learned Commissioner under the
Employee's Compensation Act, passed the impugned judgment and
award dated 18.02.2013, exparte and after the service in the recovery
proceeding, the applicant came to know about passing of impugned
judgment and award. The applicant is more than 70 years old aged
person, without support of money powers, due to complete loss in
transport business. The applicant is having good case on merit and to
success in the appeal on the point of negligence on the part of the
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(( 3 )) CA-340-2025
MSEDCL department and no ownership of the truck is with the
applicant. There was no employee employer relations between the
deceased and the applicant. Further, no complaint / F.I.R. was
registered against the applicant. The vehicle in question was shown
to Appa Devkar prior to the date of the incident. Therefore, the delay
caused while lodging the first appeal, is bona fide and no any
prejudice would be caused to the adverse party if the delay is
condoned. However, if the delay is not condoned, in that event,
irreparable financial loss would be caused to the applicant.
4. The non-applicant No.1 / claimant has filed affidavit-in-
reply and strongly opposed the application for condonation of delay.
The learned counsel for non-applicant No.1 / original claimant had
filed W.C.A. No.11 of 2011 on the ground that the present non-
applicant No.1 was the owner of the truck bearing No.MH-14/B-5832
on the day of accident. The deceased Sagar, the father of the present
non-applicant No.1 was under the employment of present applicant
No.1 as a Cleaner on truck No.MH-14/B-5832, which was insured
with the present non-applicant No.2 with effect from 05.10.2009 and
the accident took place on 06.09.2010 when the goods were being
loaded in the premises of Western Company, Hadapsar. The said
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accident was took place when the deceased was trying to put the rope
on the top of the truck and while doing so, the deceased
unfortunately came into contact with overhead high tension line of
MSEDCL and died on the spot due to electrocution.
5. The deceased Sagar was shifted to Global Hospital,
Hadapsar. He was declared died. Therefore, the non-applicant No.1
being a legal heir of deceased Sagar, filed complaint under the
Employee's Compensation Act, and prayed for compensation. Though
the present applicant / truck owner served with the notice, but he
failed to appear in the matter. So also, the notice of the present
applicant was served by substitution of service by paper publication in
the area where the present applicant is residing. However, the present
applicant / original non-applicant No.1 failed to appear in the matter.
Therefore, the said application was proceeded exparte. The present
non-applicant No.1 has obtained the decree and filed the present
application seeking condonation of delay of 11 years 9 months and 7
days i.e. 4243 days without giving any proper explanation and no
delay has been explained properly. Hence, prayed for rejection of the
application.
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6. It is well settled principle of law that the delay should not
be condoned merely as an act of generosity and in mechanical
manner. In the case of Thirunagalingam Vs. Lingeswaran and
another, 2025 Supreme (SC) 814, the Hon'ble Supreme Court held in
paragraph Nos. 31, 32 and 33, as under:-
"31. It is a well-settled law that while considering the plea for
condonation of delay, the first and foremost duty of the court is
to first ascertain the bona fides of the explanation offered by
the party seeking condonation rather than starting with the
merits of the main matter. Only when sufficient cause or
reasons given for the delay by the litigant and the opposition of
the other side is equally balanced or stand on equal footing, the
court may consider the merits of the main matter for the
purpose of condoning the delay.
32. Further, this Court has repeatedly emphasised in several
cases that delay should not be condoned merely as an act of
generosity. The pursuit of substantial justice must not come at
the cost of causing prejudice to the opposing party. In the
present case, the respondents/defendants have failed to
demonstrate reasonable grounds of delay in pursuing the
matter, and this crucial requirement for condoning the delay
remains unmet.
33. Therefore, in the case at hand, once it has been established
that the reasons provided for condoning the delay in the
application filed are not sufficient, we are not inclined to go
into the merits of the contentions raised by the learned counsel
of Respondents regarding Section 14 of the Limitation Act,
1963."
7. In the case in hand, the non-applicant No.1 alleged that
the present applicant was the registered owner of truck No.
MH-14/B-5832 and his father deceased Sagar was under the
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employment of present applicant as a Cleaner on the said truck. The
said truck was insured with non-applicant No.2 with effect from
05.10.2009 an on 06.09.2010, when the truck was parked with
loaded goods in the premises of Western Company, Hadapsar and was
putting rope on the top of the said truck, at that time, his father
unfortunately came into contact with overhead high tension line of
MSEDCL and died.
8. On perusal of the judgment dated 18.02.2013, passed by
the learned Commissioner under the Employee's Compensation Act, it
appears that the said application was proceeded exparte against the
present applicant / truck owner. The non-applicant No.1 / claimant
came with the case that he had published the notice of the present
applicant / original non-applicant No.1 in the newspaper in the area
in which the present applicant was residing, but the present applicant
failed to appear even after publication of notice in the newspaper.
9. Needless to say that, though the applicant canvassed that
on 18.02.2013, the learned Commissioner under the Employee's
Compensation Act, passed the judgment and award in question,
however, the applicant himself stated that he applied for certified
copies after more than ten years and obtained the same on
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(( 7 )) CA-340-2025
24.10.2024 i.e. after lapse of one year. The applicant has filed the first
appeal on 30.11.2024 as per the entry made on the presentation
form. However, the applicant has not given any explanation as to
why he could not file the present appeal within limitation. So also,
the delay of 11 years 9 months and 7 days, has not been explained
properly and bona fidely. The applicant appears that he was not
diligent while prosecuting the complaint W.C.A. No.11 of 2011.
Therefore, I am of the view that the applicant failed to give bona
fides of explanation to condone such huge delay of more than 11
years.
10. In view of above discussion, the present application needs
to be rejected. Accordingly, I proceed to pass the following order:-
ORDER
(i) Civil Application No.340 of 2025 is hereby rejected.
Consequently, the First Appeal Stamp No.32964 of 2024, is hereby dismissed.
(ii) Pending Civil Application Nos.341 of 2025 and 9810 of 2025, are disposed off.
[ Y. G. KHOBRAGADE, J. ] SMS 7 of 7