JUDGMENT : B.N. Karia, J. - The present appellant, who was original opponent No.3, has challenged the award passed by the learned Workmen's Compensation Commissioner, Vadodara in Workmen's Compensation Application No.27 of 2007 holding liability of the present appellant to pay compensation and directed to deposit Rs. 2,83,392/- as compensation, Rs. 1500/- as cost, Rs. 2500/- as funeral expenses and further to pay the interest from 26.06.2007 @ 12% + 25% penalty i.e. Rs. 70,848/- vide judgment and order dated 07.03.2013. 2. The short facts of the present case are as under: 2.1 As per the averments made by the claimants in their petition before the learned Commissioner, the petitioner namely Bhavesh Prabhakar Chaudhary was serving as Security Guard with the opponent No.1 from 25.12.2005 and was paid Rs. 1800/- by way of salary, on signing a voucher showing that he was getting salary of Rs. 2700/- per month. 2.2 That, security contract of the opponent No.1 was executed with the opponent No.2 and therefore, from May, 2007 onwards, the deceased was working in two shifts with the opponent No.2. That, presence of the deceased was also marked with the opponent No.2. That, on 25.05.2007, son of the petitioners was on duty and at about 2.00 to 2.15 at mid night, some unknown person, in a tense atmosphere, rushed and assaulted with the stone upon the son of the petitioner, and therefore, he became unconscious and with the help of police, he was moved to S.S.G. Hospital where he succumbed to injuries. That, police complaint was lodged with Karelibaug Police Station vide I- C.R. No.178 of 2007 by one Mohanji Pratapji Marwadi. 2.3 As per the averments, age of the deceased was 30 years at the time of incident and he was getting Rs. 1800/- per month, and therefore, the petitioners were entitled to claim for the compensation of Rs. 2,80,773/-, as the contract was given by the opponent No.2 to opponent No.1, the opponent No.1 being contractor and opponent No.2 being employer were responsible to pay the compensation. It was stated that the policy was issued to the workmen by the opponent No.3 on behalf of the opponent No.1. 2,80,773/-, as the contract was given by the opponent No.2 to opponent No.1, the opponent No.1 being contractor and opponent No.2 being employer were responsible to pay the compensation. It was stated that the policy was issued to the workmen by the opponent No.3 on behalf of the opponent No.1. That, the opponent No.3 was also liable to pay the compensation within a period of 30 days, however, no amount of compensation was paid to the petitioners, and therefore, all of the opponents are jointly or severally liable to pay the compensation to the petitioners. 2.4 The opponent No.1 filed its written statement vide Exh.23 denying the contentions raised by the petitioners. It was contended that the death was not caused during the course of employment of the opponent No.1. That, the deceased was assaulted by some assailant due to personnel revenge, and therefore, opponent No.1 is not liable to pay the compensation to the petitioners. It was further contended that the policy of workmen was taken from the insurance company, and therefore, also liability of the opponent No.1 cannot be fixed. 2.5 The opponent No.2 filed its written statement vide Exh.8 denying the contentions of the application preferred by the petitioners. It was denied that the deceased was working with the opponent No.1 and was paid Rs. 1800/- per month as salary on getting his signature in voucher showing Rs. 2700/- paid to him. That, in contract given to the opponent No.1 by the opponent No.2, as per the terms and conditions specifically condition No.5, if any security guard during the course of his employment on duty, would receive injuries or would died, the contractor solely would be liable to pay the compensation. That, as per the agreement there was no liability of the opponent No.2 to pay any compensation as there was no relationship of the employer and the employee. That, by writing a letter on 01.08.2007 to the opponent No.1 to pay the compensation to the legal heirs of the deceased, however, opponent No.2 was wrongly involved in the proceedings. That, the policy of the workmen was issued by the opponent No.3 to opponent No.1, and therefore also, opponent No.3 was liable to pay the compensation. Hence, it was requested to dismiss the application. 2.6 The opponent No.3 filed its written statement vide Exh.19 denying the contentions raised by the petitioners in their petition. That, the policy of the workmen was issued by the opponent No.3 to opponent No.1, and therefore also, opponent No.3 was liable to pay the compensation. Hence, it was requested to dismiss the application. 2.6 The opponent No.3 filed its written statement vide Exh.19 denying the contentions raised by the petitioners in their petition. That, the petitioners filed application with the collusion of the opponent No.1. That, no documents were produced of getting any salary by the deceased as well as the contract between the opponent No.1 and opponent No.2 and the incident which has taken place. That, no liability of the insurance company can be fixed for penalty as well as interest and hence, it was requested by the opponent No.3 to dismiss the application. 2.7 That, learned Commissioner after recording the evidence from the either side, was pleased to pass an award by an order dated 07.03.2013 holding the liability of opponent Nos.1 to 3 to pay the compensation to the petitioners jointly or severally. The present appellant, being aggrieved and dissatisfied, with the impugned judgment and award passed by the learned Commissioner, has preferred this appeal. 3. Heard learned advocates for the respective parties. 4. Learned advocate for the appellant submitted that the impugned order passed by the learned Commissioner is completely on wrong side and against the provisions of Workmen Compensation Act ignoring the evidence produced on record. It is further submitted that under Section 4-A(3) of the Act, only employer is liable to deposit the amount of compensation within 30 days with interest and penalty on receiving information from the claimants. That, the present appellant has not accepted the liability of interest and penalty in the policy. That, the observations of the learned Commissioner in para D of the order that there was no disclosure of the policy of not accepting liability of the interest and penalty, was completely erroneous and illegal. Admittedly, in the policy produced on record by the present appellant, there was no disclosure or specific clause of accepting liability of interest and penalty by the appellant to the workman. However, in absence of specific clause in the policy, fastening the liability of the insurance company by the learned Commissioner is wrong and illegal. Admittedly, in the policy produced on record by the present appellant, there was no disclosure or specific clause of accepting liability of interest and penalty by the appellant to the workman. However, in absence of specific clause in the policy, fastening the liability of the insurance company by the learned Commissioner is wrong and illegal. In support of his arguments, learned advocate for the appellant has relied upon the judgment of this Court passed in First Appeal No.1475 of 2008, 2011 2 GLR 21, 2017 (154) FLR 883 and 2006 (109) FLR 1074 . Ultimately, it was requested by the learned advocate for the appellant to quash and set aside the impugned judgment and order holding liability of the present appellant to pay the amount of penalty as well as interest to the claimants. 5. From the other side, learned advocate for the respondent No.3 supported the impugned judgment and order passed by the learned Commissioner and argued that there was no error or illegality committed by the learned Commissioner in passing award in favour of the claimants holding liability of the opponents jointly or severally. That, in the policy produced by the appellant, there was no disclosure of exempting insurance company from paying penalty and interest. That, no evidence was produced by the present appellant to prove that there was no liability of the present appellant to pay amount of penalty as well as interest. It was general policy under the Workmen Compensation Act, and therefore, the appellant was responsible to indemnify the employer and on his failure to pay the amount of penalty as well as interest, learned Commissioner has rightly arrived at the conclusion directing the present appellant to pay the amount of penalty as well as interest. That, no terms and conditions were incorporated in the policy produced by the present appellant before the learned Commissioner, and therefore, it was rightly held by the learned Commissioner holding liability of the present appellant of paying amount of penalty as well as interest on the date of incident i.e. 25.05.2007. Learned advocate for the respondent No.3, in support of his arguments placed reliance upon the judgment in case of Branch Manager, New India Assurance Co. Ltd. vs. Kaleeswari and Another reported in 2018 ACJ 718 and submitted that this Court may not disturb the impugned judgment and award passed by the learned Commissioner in favour of the claimants. Learned advocate for the respondent No.3, in support of his arguments placed reliance upon the judgment in case of Branch Manager, New India Assurance Co. Ltd. vs. Kaleeswari and Another reported in 2018 ACJ 718 and submitted that this Court may not disturb the impugned judgment and award passed by the learned Commissioner in favour of the claimants. Ultimately, it was requested by the learned advocate for the respondent No.3 to dismiss the appeal. 6. Learned advocate for the respondent No.4 also supported the reasonings and findings arrived at by the learned Commissioner and submitted that the respondent No.4 was insured with the present appellant and was responsible to indemnify respondent No.4-employer. That, there was contract between respondent No.3 and 4. That, as per the terms and conditions in the contract between them, only respondent No.3 was liable to pay the compensation amount to the claimants. In the alternative, it is submitted that if this Court would come to the conclusion of holding liability of the respondent No.4 being employer to pay the amount of penalty and interest, it may be permitted to recover the same amount from the respondent No.3 - contractor. Hence, it was requested by the learned advocate for the respondent No.4 to dismiss the appeal and in alternative to pass necessary order as argued by him. 7. Having considered the facts of the case, submissions of learned advocates for the respective parties as well as records of the trial Court, it appears that the incident was occurred on 26.05.2007, Death of Son of the claimants namely Bhavesh during the course of his employment with the opponent No.1 was never in dispute before the trial Court. The only dispute was of holding liability of the present appellant being insurance company of the respondent No.4 under the Workmen Compensation Act in respect of the penalty as well as of the interest as awarded to the claimants by the learned Commissioner by an order dated 07.03.2013. As per the observations made by the learned Commissioner in order, there was no condition disclosing in the policy that there was no liability of the insurance company to pay the penalty and interest amount under the Act. As per the observations made by the learned Commissioner in order, there was no condition disclosing in the policy that there was no liability of the insurance company to pay the penalty and interest amount under the Act. It was further observed that no entire policy showing terms and conditions was produced on record by the present appellant and therefore, considering the policy produced on record as general policy, it was concluded by the learned Commissioner that the insurance company was liable to pay the interest, penalty and compensation to the claimants. True that, at Mark 41/1, copy of the scheduled was produced before the learned Commissioner insured by the present appellant in favour of the Reliable Investigation & Security Services, Vadodara. In the schedule, of course, there was no disclosure of any terms and conditions exempting the present appellant insurance company of paying amount of penalty and interest. It appears that this Court, on 24.09.20l8, passed an order after observing that original policy is required to be perused and therefore, the insurance company immediately directed to produce original policy before the Court on 04.10.2018. The present appellant has preferred Civil Application No.l of 2018 for additional evidence in First Appeal No.2629 of 2013 requesting the Court to permit the appellant to submit additional evidence i.e. entire policy. Before passing order by this Court on 24.09.2018, permission to produce entire policy was sought by the appellant by preferring subsequent application under Order XLVII, Rule 27 of the Civil Procedure Code. This Court was pleased to grant necessary permission to the appellant permitting to produce entire policy as sought for. 8. If we consider the policy produced on record by the present appellant issued in favour of the respondent No.3, it appears that there was clear clause in respect of exempting insurance company as argued. This Court was pleased to grant necessary permission to the appellant permitting to produce entire policy as sought for. 8. If we consider the policy produced on record by the present appellant issued in favour of the respondent No.3, it appears that there was clear clause in respect of exempting insurance company as argued. The provisions incorporated in the policy was as under: "Provided that the Insurance granted hereunder is not extended to include: (1) any interest and/or penalty imposed on the Insured on account of his/her failure to comply with the requirements laid down under the W.C. Act, 1923 and (ii) any compensation payable on account of occupational diseases listed in part 'C' of schedule III of the W.C. Act, 1923." As specifically provided in the policy that there was no liability of the insurance company to pay the interest and/or penalty imposed on the insured on account of his/her failure to comply with the requirements laid down under the W.C. Act, 1923. 9. While, referring Section 4-A(3), (a),(b) of the Act, this Court in case of New India Assurance Co. Ltd. vs. Hiralal Gomaji Moriya (Regar) & 3 Ors. reported in (2011) 2 CLR 21 has observed as under: "4A. Compensation to be paid when due and penalty for default:- (1) Compensation under Section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make further claim. (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve percent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) If, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty percent of such amount by way of penalty." If we minutely examine clause 'a' and 'b', it clearly specifies that interest and penalty shall be paid by the employer and there is no mention about the insured. In the policy produced before this Court also, liability to pay the penalty and interest was specifically exempted of the insurance company and therefore, also the present appellant is not liable to indemnify the interest and/or penalty as ordered by learned Commissioner. 10. In another case, First Appeal No.1475 of 2008, in similar situation, this Court has taken a view that when Section itself provides for indemnifying the principal, where he is liable to pay compensation and when sub-section (1) specifically provides that principal shall be liable to pay compensation to any employee employed in execution of the work, no liability of insurer can be fixed. The appeal preferred by the appellant was partly allowed and decree passed by the learned Commissioner was modified accordingly. 11. The Hon'ble Apex Court in a case of New India Assurance o. Ltd. vs. Harshadbhai Amrutbhai Modhiya and Another reported in (2006) 109 FLR 1074 in para 6, 7 and 8 has observed as under: "6. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided for therein. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided for therein. With a view to minimise his liability, an employer can contract out so as to make the insurer not liable as regards indemnifying him in relation to certain matters which do not strictly arise out of the mandatory provisions of any statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law. In Ved Prakash Garg (supra), this Court undoubtedly held that in terms of the contract of insurance entered into by and between the employer and the insurer under the provisions of the Motor Vehicles Act, 1988, which would also apply in a given case to the claim under the provisions of the Workmen's Compensation Act, the insurer would also be liable for payment of interest stating: "A conjoint reading of these provisions in the insurance policy shows that the insurance company insured the employer-owners of the insured motor vehicles against all liabilities arising under the Workmen's Compensation Act for which statutory coverage was required under section 95 of the Motor Vehicles Act, 1939 which is analogous to Section 147 of the present Motor Vehicles Act noted earlier. Section 149 deals with "Duty of insurers to satisfy judgments and awards against persons insured in respect of third-party risks". The moot question is whether the insurance coverage as available to the insured employer owners of the motor vehicles in relation to their liabilities under the Workmen's Compensation Act on account of motor accident injuries caused to their workmen would include additional statutory liability foisted on the insured employers under Section 4-A(3) of the Compensation Act." The question posed for our consideration is required to be resolved in the light of the aforesaid statutory schemes of the two interacting Acts. It is not in dispute and cannot be disputed that the respondent-insurance companies concerned will be statutorily as well as contractually liable to make good the claims for compensation arising out of the employers' liability computed as per the provisions of the Compensation Act. It is not in dispute and cannot be disputed that the respondent-insurance companies concerned will be statutorily as well as contractually liable to make good the claims for compensation arising out of the employers' liability computed as per the provisions of the Compensation Act. The short question is whether the phrase "liability arising under the Compensation Act" as employed by the proviso to sub-section (1) of Section 147 of the Motor Vehicles Act and as found in proviso to clause (i) of subsection (1) of Section II of the insurance policy, would cover only the principal amount of compensation as computed by the Workmen's Commissioner under the Compensation Act and made payable by the insured employer or whether it could also include interest and penalty as imposed on the insured employer under contingencies contemplated by Section 4-A(3)(a) and (b) of the Compensation Act." Yet again in L.R. Ferro Alloys Ltd. (supra), this Court opined that if an amount of compensation is not deposited within a period of one month, the insurance company shall be liable to reimburse the owner only the amount of compensation with interest there from but not the penalty imposed on insurer employer for default of payment of amount stating: "The only contention put forth before us is that the entire liability including penalty and interest will have to be reimbursed by the insurance company and this aspect has not been examined by the learned Single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg vs. Premi Devi this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the insurance company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault the insurance company cannot be made liable to reimburse penalty imposed on the employer. Hence the compensation with interest is payable by the insurance company but not penalty. Following the said decision and for the reasons stated therein, we modify the order made by the High Court to that extent. Hence the compensation with interest is payable by the insurance company but not penalty. Following the said decision and for the reasons stated therein, we modify the order made by the High Court to that extent. The appeal is allowed in part accordingly." 7. We are, in this case, not concerned with a case where an accident has occurred by use of a motor vehicle in respect whereof the contract of insurance would be governed by the provisions of the Motor Vehicle Act, 1988. 8. As indicated here-in-before, a contract of insurance is governed by the provisions of the Insurance Act. Unless the said contract is governed by the provisions of a statute, the parties are free to enter into a contract as for their own volition. The Act does not contain a provision like Section 147 of the Motor Vehicles Act. Where a statute does not provide for a compulsory insurance or the extent thereof, it will bear repetition to state, the parties are free to choose their own terms of contract. In that view of the matter, contracting out, so far as reimbursement of amount of interest is concerned, in our opinion, is not prohibited by a statute." 12. The Hon'ble Apex Court in a case of United India Insurance Co. Ltd. vs. Ashokbhai Chaganbhai Gamit and Another reported in (2017) 154 FLR 883 in para 8 has observed as under: "8. Thus, the law is settled on this aspect that the statutory liability under the Workmen's Compensation Act is on the employer and unless a separate clause included for the liability of interest, the Insurance Company is not liable to make payment of interest especially, in case where the accident is not related to a motor vehicle accident." 13. If we consider the policy produced on record before this Court by the present appellant, there is no statutory liability on the insurance company under the Workmen Compensation Act of penalty as well as of interest. Insurance is a matter of conduct between the insurance company and insured. It is always open to the insurance company to refuse to insured in absence of any statues to that effect, Insurance company cannot be forced by the Courts to take liability which they do not want to take on. Insurance is a matter of conduct between the insurance company and insured. It is always open to the insurance company to refuse to insured in absence of any statues to that effect, Insurance company cannot be forced by the Courts to take liability which they do not want to take on. In a case relied upon by the learned advocate for the respondent No.3 in a case of Branch Manager, New India Assurance Co. Ltd. vs. Kalesswari and Another, reported in 2018 ACJ 718 liability of the insurance company to pay the interest and penalty on the compensation amount was confirmed by the High Court. As per the facts of this case, insurance company was directed to pay the amount of interest, which was challenged before the Hon'ble Apex Court. The policy was issued under the Workmen Compensation Act wherein exclusion clause to pay the interest was conditional and was not absolute and the insurance company was not liable to pay the interest or penalty imposed to the insured on account of his/their failure to comply with the requirement under the Workmen Compensation Act. Insurance company neither disclosed the particulars of the requirement which insured or claimant failed to comply with nor led any evidence to prove the facts. Under these circumstances, the order passed by the learned Commissioner directing the insurance company to pay the interest on the compensation amount was confirmed by the Hon'ble Apex Court. 14. Here, judgment relied upon by the respondent No.3 would not be helpful because the policy produced by the appellant clearly exempt from liability of the present appellant to pay the interest or penalty on the amount of compensation if the insured would be failed to comply with the requirements under Workmen Compensation Act. 15. For the reasons aforesaid, impugned judgment and order passed by the learned Commissioner dated 07.03.2013 cannot be sustained hence, it is hereby quashed and set aside qua the present appellant holding liability to pay the interest and penalty on the compensation amount to the claimants. The appellant shall not be liable to pay the interest and penalty however, it is made clear that employer shall liable to pay the amount of interest and penalty to the claimants. 16. Accordingly, the appeal is allowed. The appellant shall not be liable to pay the interest and penalty however, it is made clear that employer shall liable to pay the amount of interest and penalty to the claimants. 16. Accordingly, the appeal is allowed. The liability of the present appellant in respect of penalty amount as well as interest on the awarded compensation to the claimants shall be quashed and set aside. The amount deposited by the appellant before the learned Workmen Commissioner, so far as penalty and interest is concerned, shall be refunded to the appellant in accordance with law. 17. The respondent No.4 Vadodara Municipal Corporation shall deposit amount of penalty as well as interest within a period of four weeks before the learned Commissioner from the date of receipt of the order and the same may be recovered from the respondent No.3 - Reliable Investigation & Security Services in due course. Record and Proceedings be sent back to the learned trial court forthwith. In the facts and circumstances of the case, there would be no order as to costs.