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Rajasthan High Court · body

2017 DIGILAW 1638 (RAJ)

PARSHVNATH TRAVELS v. KAMLA KUNAR

2017-07-25

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. This appeal is directed against judgment dated 18.03.2017 passed by Commissioner, Employees Compensation, Udaipur ('the Commissioner'), whereby the Commissioner has imposed penalty of Rs. 2,07,024/- on the appellant employer. 2. The application for compensation was filed by legal representatives of Takhat Singh with the averments that said Takhat Singh was working in the employment and under the directions of the appellant as Driver on Bus No. RJ27-PA-8000. The vehicle met with an accident, resulting in grievous injuries to Takhat Singh, to which he succumbed. Based on the said averments compensation was claimed. It was indicated in the application that the claimants were entitled to compensation, penalty on account of delay and interest. The application was resisted by the owner as well as the Insurance Company. The owner, inter alia, indicated in the reply that he was not liable for payment of amount of penalty as he had already informed about the accident to the Insurance Company. 3. After hearing the parties, the Commissioner awarded a sum of Rs. 6,90,080/- as compensation along with interest @ 12% per annum from 25.12.2011. The Commissioner also imposed a penalty of Rs. 2,07,024/- on appellant employer. It was observed by the Commissioner that as more than four years have passed since the date of accident and no reason has been indicated for non-payment of amount of compensation to the employee, the employer was liable to pay penalty to the tune of 30% of the amount of compensation. 4. It is submitted by learned counsel for the appellant that the imposition of penalty by the Commissioner is contrary to the provisions of Section 4-A(3)(b) of the Act, which provides that the penalty can only be imposed after giving a reasonable opportunity to the employer to show cause why it should not be imposed and as admittedly in the present case no opportunity of hearing was granted, the penalty could not have been imposed and, therefore, the same deserves to be set aside. 5. Reliance has been placed on judgment in the case of Akbar Ali & Ors. v. Santra & Ors. : 2007-08 DNJ (Raj.) (Suppl.) 385. Learned counsel for the respondents-claimants supported the judgment impugned. It was submitted that it was specifically indicated in the application for compensation that the payment of compensation was not made and, therefore, penalty be imposed. 5. Reliance has been placed on judgment in the case of Akbar Ali & Ors. v. Santra & Ors. : 2007-08 DNJ (Raj.) (Suppl.) 385. Learned counsel for the respondents-claimants supported the judgment impugned. It was submitted that it was specifically indicated in the application for compensation that the payment of compensation was not made and, therefore, penalty be imposed. Admittedly, the notice of the said application was served and a response was filed and, therefore, it cannot be said that the appellant had no opportunity of hearing and, therefore, the appeal deserves to be dismissed. 6. Learned counsel appearing for Insurance Company duly supported the judgment passed by the Commissioner. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. This Court in Deep Chand v. Smt. Champa, S.B. Civil Misc. Appeal No. 425/2012 decided on 15.02.2017 while dealing with the a similar nature controversy, laid down as under:- "The other issue raised by learned counsel for the appellant regarding non-issuance of notice also has no substance, inasmuch as, in the application filed before the Commissioner, the claimants had specifically claimed penalty @ 50% and in response the appellant had taken a plea that as immediately on occurrence of the accident, the Insurance Company was informed the appellant was not liable for making payment of amount of penalty and therefore, it cannot be said that the appellant was not given prior opportunity of hearing before imposing the penalty by the Commissioner." 9. The facts of the present case are almost identical to the facts of the case of Deep Chand (supra) as there is a specific prayer made in the application for imposing 50% penalty and interest and a response also has been filed by the owner inter alia indicating that he had informed the Insurance Company for payment. The plea raised by the owner in this regard, cannot be a reason enough for not imposing the penalty by the Commissioner as merely informing the Insurance Company was not sufficient as the purpose of the Act is to provide immediate relief to the employee/legal representatives of the employee. 10. The plea raised by the owner in this regard, cannot be a reason enough for not imposing the penalty by the Commissioner as merely informing the Insurance Company was not sufficient as the purpose of the Act is to provide immediate relief to the employee/legal representatives of the employee. 10. So far as judgment in the case of Akbar Ali (supra) relied on by learned counsel for the appellant is concerned, the facts of the said judgment are clearly distinguishable as it is not indicated in the said judgment as to whether any specific prayer in this regard along with facts was made in the application or not. 11. In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed.