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2014 DIGILAW 345 (RAJ)

Oriental Insurance Company Ltd. v. Mohini Devi

2014-02-03

ALOK SHARMA

body2014
JUDGMENT 1. - On the request of the counsel for the appellant-Insurance Company, service on respondent No.4 is dispensed with. Service is complete. 2. With the consent of the counsel for the parties, the appeal is being disposed of at this stage. The appeal was admitted on 11.07.2003. The question which arises in the present civil misc. appeal under Section 30 of the Employees' Compensation Act, 1923 (hereinafter 'the Act of 1923') is as to whether the penalty under Section 4A(3)(b) of the Act of 1923 can be imposed upon the Insurance Company. 3. The facts of the case are that the respondents-claimants (hereinafter 'the claimants') as the legal heirs and successors of one Raju @ Rajendra, who died in an accident while he was working as a cleaner on Trolla No.HR-38-0741 insured with the appellant-Insurance Company (hereinafter 'the Insurance Company') sought compensation under the Employees' Compensation Act, 1923 before the Employees' Compensation Commissioner, Beawar. Even though the claim petition was filed in the year 1996, the Insurance Company was impleaded as a party therein in the year 1998. The claimants claimed for compensation, interest and penalty resulted from the death of Raju @ Rajendra in the accident of insured vehicle aforesaid owned by one Hari Ram. The owner as a non-claimant in the petition by the claimants admitted the factum of Raju @ Rajendra's employment as also the accident consequent to which Raju @ Rajendra had expired. It was however submitted that the vehicle involved in the accident in which Raju @ Rajendra was the cleaner was insured and therefore the Insurance Company was liable to pay the entire compensation, interest and penalty thereon. The case of the Insurance Company was that it was not informed about the accident and it could not in any event be liable to pay penalty under the Act of 1923. 4. Vide judgment dated 11.03.2003, the learned Commissioner award a compensation of Rs. 87,388/- plus an additional sum of Rs. 20,973/- as interest to the claimants. A sum of Rs. 25,000/- was awarded on account of penalty under the provisions of Section 4A(3)(b) of the Act of 1923. Hence this civil misc. appeal. 5. Mr. Tripurari Sharma, appearing for the Insurance Company, has submitted that the Insurance Company could not in any event be liable for payment of penalty. 20,973/- as interest to the claimants. A sum of Rs. 25,000/- was awarded on account of penalty under the provisions of Section 4A(3)(b) of the Act of 1923. Hence this civil misc. appeal. 5. Mr. Tripurari Sharma, appearing for the Insurance Company, has submitted that the Insurance Company could not in any event be liable for payment of penalty. It is submitted that in fact the penalty has been claimed as against the owner of the vehicle involved in the accident consequent to which Raju @ Rajendra working as a cleaner thereon had expired. Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Ved Prakash Garg v. Premi Devi & Ors., 1998 ACJ 1 : 1997 II CLR 938 SC wherein the Hon'ble Supreme Court has held that the insurer was not liable for penalty on the amount of compensation and interest determined by the Commissioner for the reason that penalty amount did not automatically flow from the main liability incurred by the insured-employer, but was an imposition on account of personal fault of the insured in not making timely payment of compensation mandated under the Act of 1923 to the claimants of the deceased-employee. Counsel has submitted that the amount of compensation and interest thereon has already been paid by the Insurance Company to the claimants. 6. Mr. Kunal Rawat, appearing for the claimants, has submitted that the liability for payment of penalty for delayed payment of compensation in the circumstances should be to the owner's account. He submits that in fact such a prayer was indeed made by the claimants before the learned Commissioner. 7. Having heard the counsel for the parties and taking into consideration the enunciation of law by the Hon'ble Supreme Court in the case of Ved Prakash Garg (Supra), there is no option except to allow the appeal and hold that the appellant-Insurance Company is not liable for the payment of penalty as determined by the Commissioner. The claimants would however have the right to recover the penalty amount from the employer of the deceased Raju @ Rajendra / the owner of the vehicle involved in the accident leading to Raju's death.The civil miscellaneous appeal stands disposed of accordingly.Civil Miscellaneous Appeal disposed of. *******