JUDGMENT : 1. Present appellant, who is the original opponent No. 2 in Workmen Compensation Application No. 8 of 1999 for compensation under the Workmen's Compensation Act (hereinafter referred to as “the Act” for brevity) has challenged the judgment and award dated 07.07.2005 passed by the learned Workmen Compensation Commissioner directing the appellant herein – opponent No. 2 and the original opponent No. 3 – the Oriental Insurance Company to pay a sum of Rs.1,97,955/- to the applicant within 30 days from the date of receipt of the order. The present appellant was also directed to pay the interest @ 12% per annum from the date of death of the employee and also to deposit 50% of the awarded amount i.e. 98,978/- towards penalty with the Government, within 30 days of the receipt of the order together with costs of application of Rs.1,000/-. 2. Short facts of the case may be referred as under: 2.1 An application under the Act was filed by the applicant – wife of the deceased praying for compensation of Rs.2,72,500/- with interest @ 18% per annum and penalty on account of sad demise of her husband – Poonambhai Hirabhai on 13.02.1998, while he was working as an employee, as Sweeper, with the opponent Nos. 1 and 2 therein. As per the averments made by the applicant, on 25.01.1998, at about 2:30 p.m., her husband, while on duty, fell down in 30ft. Deep cellar and hence, he was shifted to V.S. Hospital for treatment and during the course of treatment, he died on 13.02.1998. Therefore, she has prayed for the compensation, as aforesaid. 2.2 On receiving the notice issued by the learned Commissioner, no written statement was filed by the original opponent No. 1. The opponent No. 2, the appellant herein, filed written statement vide exh. 7 denying the averments made by the applicant in her application, except which were specifically admitted. It was contended that deceased was working on daily wages and was paid Rs.40/- per day. It was not admitted that on the day of accident i.e. 25.01.1998, he was working as a Sweeper but, the deceased was working as a daily wager and had fell down and died. It was also not admitted that the deceased was an employee of this opponent and therefore, he was liable to pay any compensation. It was not admitted that on the day of accident i.e. 25.01.1998, he was working as a Sweeper but, the deceased was working as a daily wager and had fell down and died. It was also not admitted that the deceased was an employee of this opponent and therefore, he was liable to pay any compensation. That, the insurance of the workers was taken by this opponent with the Oriental Insurance Company Ltd., the opponent No. 3 and therefore, the liability of paying compensation would be of the insurance company. That, first notice was issued by the applicant and it was replied on 17.06.1998. That, no liability of this opponent can be fastened by the Court and accordingly, it was requested to dismiss the application. 2.3 The opponent No. 3 - insurance company filed its written statement vide exh. 8 denying the contents of the application. That, the deceased was employed by the opponent No. 2 and he cannot be considered an an employee of the opponent No. 1 and therefore, the opponent No. 1 is liable to pay the compensation and the opponent No. 3 is not liable to indemnify the opponent No. 2. It was not admitted that a notice under Section 10(1) of the Act was issued by the original applicant to the opponent No. 2. That, in absence of necessary original or certified documents, it was not possible for the insurance company to process the claim of the applicant. That, since the applicant failed to submit the original or certified documents, the only applicant can be blamed for non-payment of her claim, if at all she is entitled for the same. That, this opponent cannot be held liable to pay any compensation to the applicant. The insurance of the opponent No. 2 allegedly taken by the opponent No. 3 was not admitted. That, no relief, as prayed for by the applicant, can be granted. Hence, it was requested by the opponent No. 3 to dismiss the claim application. 2.4 After considering the pleadings of the parties, the learned Commissioner framed the Issues vide exh. 9. That, after hearing the parties, the learned Commissioner was pleased to pass the award, as aforesaid, to which, present appellant – original opponent No. 2 being dissatisfied, has preferred this appeal under Section 30(aa) of the Act. 3. Heard, learned counsel Ms. Nidhi K. Trivedi for Mr. 9. That, after hearing the parties, the learned Commissioner was pleased to pass the award, as aforesaid, to which, present appellant – original opponent No. 2 being dissatisfied, has preferred this appeal under Section 30(aa) of the Act. 3. Heard, learned counsel Ms. Nidhi K. Trivedi for Mr. Dipak R. Dave, learned counsel for the appellant – original opponent No. 2 and learned Assistant Government Pleader for the respondent No. 2 and Mr. Vasant Shah for the respondent No. 3 - insurance company. 3.1 The learned counsel for the appellant submitted that penalty imposed by the learned Commissioner was so harsh for the reason that immediately after the accident i.e. within two days, the opponent No. 3 was informed by the present appellant. There was no delay on the part of the present appellant in informing about the accident and death of the deceased employee. That, this fact was not considered by the learned Commissioner while passing the impugned judgment and award. That, imposition of penalty, in absence of any specific notice to that effect, was contrary to law and against the principles of natural justice. The penalty was required to be imposed against the insurance company as the appellant was not in fault. That, the insurance of the deceased workman was taken by the opponent No. 3 and there was no deliberate delay on the part of the appellant and that, maximum penalty prescribed under the Act cannot be imposed. That, imposition of penalty was unjust and improper. It was further submitted that though the learned Commissioner has noted that the insurance company is required to pay the amount of compensation, imposing liability of interest on the appellant was contrary to law and the learned Commissioner has committed an error. That, the present appellant was not liable to pay the amount of interest on the amount of compensation to the applicant as the policy itself was clear covering the risk of the workman issued by the opponent No. 3. That, the present appellant cannot be held responsible to pay the amount of interest on the compensation amount. In support of her arguments, the learned counsel has relied upon several decisions viz. i) Kantilal Gordhandas Lalakiya V. Ramniklal Laxmichan Khimasiya and Others, 2009 (1) GLR 319 , ii) New India Insurance Co. That, the present appellant cannot be held responsible to pay the amount of interest on the compensation amount. In support of her arguments, the learned counsel has relied upon several decisions viz. i) Kantilal Gordhandas Lalakiya V. Ramniklal Laxmichan Khimasiya and Others, 2009 (1) GLR 319 , ii) New India Insurance Co. Ltd. V. Shiv Singh, 2000 (9) SCC 227 and iii) L. R. Ferror Alloys Ltd. V. Mahavir Mahto, 2002 (9) SCC 450 and eventually, urged to allow the appeal and exonerate the present appellant from paying the amount of interest and also to reduce the amount of penalty. 4. From the other side, the learned Assistant Government Pleader for the respondent No. 2 has submitted that the order passed by the learned Commissioner would not affect the respondent No. 2 and therefore, considering the facts of the case, necessary orders may be passed by this Court. 5. The learned counsel for the respondent No. 3 insurance company strongly objected the arguments advanced by the learned counsel for the appellant and submitted that under Section 4(3) of the Act, employer himself was liable to pay the amount of compensation as well as the interest as the opponent No. 2 failed to pay the amount of compensation to the applicant within a period of one month from the date of the accident. That, no information was given by the opponent No. 2, present appellant, to opponent No. 3 within a period of one month from the date of accident. No, necessary documents were forwarded by the present appellant within prescribed time under the Act. That, no liability of paying the interest would be on the part of the opponent No. 3. That, liability of penalty would be on the shoulder of the present appellant. That, the learned Commissioner has rightly considered this aspect and has committed no error, in law as well as facts, and hence, it was requested by the learned counsel for the respondent No. 3 to dismiss the appeal. No arguments was advanced by the respondent No. 1. 6. That, the learned Commissioner has rightly considered this aspect and has committed no error, in law as well as facts, and hence, it was requested by the learned counsel for the respondent No. 3 to dismiss the appeal. No arguments was advanced by the respondent No. 1. 6. Having considered the facts of the case and the submissions made by the learned counsel for the respective parties, as there is no question of employee and employer or relationship of the deceased with the opponent No. 2, the only question of fastening the liability of interest on the part of the respondent No. 3 and the penalty imposed, as aforesaid, on the part of the present appellant would be required to be decided in the present appeal. 6.1 Kokilaben Poonambhai, the original applicant, was examined before the learned Commissioner vide exh. 12. She has stated in her deposition that on 25.01.1998 her husband was working with the opponent No. 2 as workman. That, during the course of employment, he met with an accident and fell down on the ground floor. He sustained grievous injuries and was admitted in V. S. Hospital. For a period of 18 days, treatment of her husband was continued and thereafter, on 13.02.1998 he was expired. She has produced the police report, report from the V.S. Hospiral, P.M. Report, School Leaving Certificate of her husband, Notice issued to the opponent No. 2, Acknowledgment receipts of opponent No. 2 as to receipt of notice, letter written to the opponent No. 2 dated 27.06.1998 and acknowledgment receipts etc. These documents were exhibited vide exhs. 12 to 27. Now, if we consider the documents produced on record i.e. on 25-26.05.1998, the applicant informed the opponent Nos. 1 and 2 by issuing notice under Section 10(1) of the Act informing that in an accident occurred on 25.01.1998 at about 2:30 p.m. while her husband was working as a Sweeper, fell down in a cellar and sustained injuries and during treatment, he died on 13.02.1998. A request was made by the applicant to pay the compensation according to the Act in the sum of Rs.1,64,962/-. Acknowledgment receipts were also produced on record vide exhs. 18 and 20. It also appears from the record that present appellant replied the notice issued by the applicant. That, insurance was taken from the opponent No. 3 – Oriental Insurance Co. Acknowledgment receipts were also produced on record vide exhs. 18 and 20. It also appears from the record that present appellant replied the notice issued by the applicant. That, insurance was taken from the opponent No. 3 – Oriental Insurance Co. Ltd. and she may get the amount of compensation from the insurance company. In the reply given by the present appellant, it was admitted that on 25.01.1998, the deceased was working as a Sweeper, however, it was stated that he was not on muster roll but was a daily wager, paid Rs.40/- per day. There was no dispute with regard to death of the deceased during treatment on 13.02.1998. It also appears from the document, letter dated 06.08.1998, at exh. 25, addressed to the applicant by the present appellant for forwarding necessary documents, reference of the letter issued by the Oriental Insurance Co. Ltd. was given. It also appears that opponent No. 3 – insurance company had also written a letter dated 15.07.1998 to the present appellant in connection with its letter dated 27.01.1998 and subsequent letter dated 12.06.1998. for forwarding the documents. From this letter, it transpires that two letters dated 27.01.1998 and 12.06.1998, were written by the present appellant to the insurance company. The date of accident was 25.01.1998, thus, within two days, the present appellant had informed the insurance company as regards the incident in question and as necessary documents were not supplied by the applicant, again on 06.08.1998, the present appellant informed the applicant to provide the necessary documents. Under Section 4A.(3)(a) of the Act, where any employer is in default in paying the compensation due under the Act within one month from the date it fell due, the Commissioner shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of 12% 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 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. From the record, it transpires that after the accident, within two days, the present appellant had informed the opponent No. 3 - insurance company with regard to the accident occurred on 25.01.1998. There was no deliberate delay on the part of the present appellant to inform the opponent No. 3. Indisputably, the policy of workman was taken by the opponent No. 3, which was produced vide exh. 36. The period shows that the date of accident was covered under the policy to indemnify the present appellant. The Hon'ble Apex Court has, in the case of Shiv Singh (supra), referred the case of Ved Prakash Garg V. Premi Devi and Others, (JT 1997 (8) SC 229) wherein, in para 24, it was held as under: “24. As a result of the aforesaid discussion, it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmen's Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section 4a, Sub-section (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4a(3) (b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone.” 6.1.1 In that case, the insurance company was held liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmen's Commissioner under the Compensation Act on the conjoint operation of Sections 3 and 4a, Sub-section (3)(a) of the Compensation Act. 6.2 In another case, in Mahavir Mahto (supra), similar question was before the Hon'ble Apex Court. It was held that, 'the claim for compensation along with interest 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, insurance company cannot be made liable to reimburse the penalty imposed on the employer'. Hence, the compensation with interest was held to be payable by the insurance company but not the penalty. But, so far as the penalty imposed on the insured employer is on account of his personal fault, insurance company cannot be made liable to reimburse the penalty imposed on the employer'. Hence, the compensation with interest was held to be payable by the insurance company but not the penalty. 6.3 Yet in another case, in Kantilal Gordhandas Lalakiya (supra), the insurance company was directed to pay the amount of compensation with interest thereon at 9% per annum. Here also, indisputably, the policy issued by the opponent No. 3 was in force at the time of accident covering the risk of the workman in favour of the present appellant/insured. The insurance company cannot be exonerated from pay the amount of compensation along with interest. Here, in the case on hand, only the insured – present appellant was held liable to pay the amount of interest on the compensation amount. So far as liability to pay the compensation is concerned, joint and several liability was imposed, of the present appellant and the insurance company, however, the appellant being the employer, cannot be exonerated from the liability of penalty as held by the learned Commissioner and therefore, the insurance company cannot be held liable to pay the amount of penalty. Therefore, considering the facts of the case, this Court is of the opinion that so far as the amount of compensation along with interest part is concerned, the present appellant and the insurance company would be jointly and severally liable to pay the same and to that extent, the impugned order of the learned Commissioner requires to be modified. 6.4 So far as the penalty part is concerned, the learned counsel for the appellant has requested to reduce the amount of penalty, however, this Court does not deem it fit to consider the said request of the appellant in view of the triviality of the amount. 7. In view of aforesaid discussion and observations, present appeal is allowed in part and the impugned judgment and award passed by the learned Commissioner is modified to the aforesaid extent and it is held that the present appellant as well as the insurance company both would, jointly and severally, liable to pay the amount of compensation together with interest as awarded by the learned Commissioner. Rest of the judgment and award shall remain unaltered. Rest of the judgment and award shall remain unaltered. 7.1 At the request of learned counsel for the appellant it is observed that excess amount, if any, after aforesaid modification, out of the amount deposited by the present appellant, shall be refunded to the present appellant together with the interest, if any, accrued on the same. 7.2 Registry to return the R&P forthwith.