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2005 DIGILAW 3255 (RAJ)

United India Insurance Co. v. Rati Ram

2005-12-08

VINEET KOTHARI

body2005
Judgment Dr. Vineet Kothari, J.-Heard learned Counsel for the appellant. 2. This appeal under Section 30 of the Workmen Compensation Act, 1923 is directed against the order dated 30.12.1997 passed by the Workmen Compensation Commissioner, Sriganganagar while deciding W.C. Case No. 15/1992, whereby the compensation of Rs. 31,769/-for loss of two fingers of one hand, taking the said permanent disability at 30% alongwith 6% interest computed at Rs. 8,855/ - and 50% penalty of Rs. 15,885/-was awarded in favour of the workman. .3. Learned Counsel for the appellant, Insurance Company, submits two contentions in the following manner:- 1. That the Tribunal could not have imposed the penalty under Section 4-A(3)(b) of the Act without giving specific show cause notice and reasonable opportunity of hearing to the employer in this regard and as far as Insurance Company is concerned, the Insurance Company cannot be made liable to pay the amount of penalty, which is on account of personal fault of the employer, and 2. That theTribunal has taken the percentage of disability on account of loss of two fingers of hand at 30%, whereas it should be only 20% as specified in Pt. (2), Item No. 9 of Schedule I. .4. Learned Counsel for the appellant relies upon the following Judgment s in support of his submissions: 1. Ved Prakash Garg vs. Premi Devi & Ors., reported in 1997 (8) SCC 1 . 2. The Board of Rajasthan & Anr. vs. Rajendra & 3 Ors., reported in 2001 (2) WLC - 51. 5. Wherein the Honble Supreme Court as well as Division Bench of this Court have laid down that the penalty under Section 4-A(3)(b) of the Act, cannot be imposed without giving specific and reasonable opportunity of hearing to the employer. 6. Having heard the learned Counsel and respectful following the Judgment s cited by the learned Counsel for the appellant - Insurance Comapny, I find considerable force in the submissions made by the learned Counsel for the Insurance Company, therefore, this Court is of the view that the impugned order suffers from this legal infirmity and deserves to be set aside. 7. The Tribunal without giving specific opportunity of hearing to the employer has imposed the maximum permissible penalty of 50% of Rs. 15,585/-. The employer ought to have given a reasonable opportunity of hearing in this regard before imposition of such penalty. 7. The Tribunal without giving specific opportunity of hearing to the employer has imposed the maximum permissible penalty of 50% of Rs. 15,585/-. The employer ought to have given a reasonable opportunity of hearing in this regard before imposition of such penalty. Having not done so, the imposition of penalty cannot be justified, therefore, the impugned order on this ground, to this extent of imposition of penalty, deserves to be set-aside. 8. It is also true that the amount of penalty cannot be recovered from the Insurance Company because it is on account of personal fault of the employer of delay in payment of the compensation within the stipulated period, for which he may or may not be able to furnish proper explanation in this regard. Therefore, even after remand of the case, if the Workmen Compensation Commissioner, after giving specific show cause notice to the employer and reasonable opportunity of hearing, comes to the conclusion that imposition of penalty would be justified, it is only the employer M/s. Birla Ginning and Oil Mills, Kesrisinghpur, District. Ganganagar - Respondent No. 2, who would be liable to pay the said penalty on its own and the Insurance Company cannot be held liable. 9. The Tribunal will also reconsider whether the compensation should be computed at 20% as specified in Schedule 1 or 30% as done by it. Therefore, the impugned order is set aside and the matter is remanded back to the Tribunal - Workmen Compensation Commissioner to redecide these two aspects of the matter. The compensation already paid to the workman shall, however, not be recovered back. 10. Since, there was a stay of this Court granted on 10.04.1998 to the extent of penalty of Rs. 15,885/-, there is no question of any refund of the same at this stage. 11. With the aforesaid observations and directions, the present appeal is allowed.