JUDGMENT : 1. The appellant, who is original opponent no.1 before the learned Workman Commissioner in W.C. Application No.45 of 1998, has challenged the judgment and order passed by the learned Workman Commissioner dated 04.08.2004 whereby the learned Commissioner has directed the insurance company to deposit Rs.2,18,470/- towards compensation along with 6% interest thereon within 30 days and further directed the present appellant to deposit Rs.1,09,235/- towards 50% penalty on the amount of compensation. The present appellant has challenged the impugned judgment and order by preferring this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (in short ‘the Act’). 2. The short facts of the present case are as under: 2.1 As per the averments made in the claim petition, son of the applicant no.1 and brother of the applicant no.3 namely Vijaykumar was serving as a driver with the opponent no.1 in his jeep, bearing registration no.GJ-6-K-5106. That, he was paid Rs.2501/- by way of salary by the opponent no.1. On 06.03.1998, the deceased was serving as driver with the opponent no.1 at about 3.30 a.m. in the morning, near Dabhoi- Vega chowkdi, motor vehicle jeep, bearing registration no.GJ-6-K-5106, met with an accident and therefore, son of the applicant no.1 namely Vijaykumar Somabhai Mali sustained grievous injuries. He was immediately shifted for treatment in the SSG Hospital, Vadodaora by the opponent no.1. On 09.03.1998, during the treatment he was expired. That, during the course of the employment with opponent no.1, on 06.03.1998 the accident was occurred and the deceased was expired. That, the motor vehicle jeep, bearing registration no.GJ-6-K-5106, was insured with the opponent no.2 and therefore, as per the request made by applicants, all the opponents were jointly or severally liable to pay the compensation of Rs.2,18,470/-. They have further stated in their claim petition that accident was informed to the opponents however, no amount of compensation was paid to the applicants. That, legal notice was issued by the applicants through their advocate on 29.04.1998 which was duly served to the opponents however, no compensation amount was received by the appellants. That, opponents were liable to pay additional amount of penalty at 50% on the amount of compensation, hence, requested to allow the claim petition and award compensation along with interest @ 18%. 2.2 The opponent no.1 after receiving the notice issued by the learned Commissioner appeared through his advocate before the learned Commissioner. That, opponents were liable to pay additional amount of penalty at 50% on the amount of compensation, hence, requested to allow the claim petition and award compensation along with interest @ 18%. 2.2 The opponent no.1 after receiving the notice issued by the learned Commissioner appeared through his advocate before the learned Commissioner. No written statement was filed by the opponent no.1 thereafter. 2.3 The opponent no.2 filed written statement vide Exh.11 denying averments made by the applicants except specifically admitted in the reply. It was denied that the deceased was employee of the opponent no.1 and the accident was occurred in the due course of the employment with the opponent no.1. That, applicants are not entitled to get compensation from this opponent. That, no insurance was taken by the opponent no.1, and therefore, this opponent is not liable to indemnify the opponent no.1 for any claim of the applicants. The relationship of the applicants with the deceased were not admitted by this opponent. It was denied that the deceased was serving as driver with the opponent no.1 over his truck, bearing registration no. GJ-6-K-5106, and earning Rs.2501/- towards monthly wages. It was further denied that on 06.03.1998, the deceased was serving as driver of the truck, bearing registration no.GJ-6-K-5106, and lost his control on the steering of the said truck which was turtailed on the Dabhoi-Vega chowkdi and the deceased-Vijaykumar received serious injuries on his head and was immediately shifted to SSG Hospital, Vadodara. It was not accepted that the deceased-Vijaykumar was died during the treatment on 09.03.1998. Ultimately, it was requested by this opponent to dismiss the petition. 2.4 Learned Commissioner, after recording the evidence, vide order dated 04.08.2004, was pleased to direct the opponent no.2-insurance company to pay the amount of Rs.2,18,470/- by way of compensation on account of death of the deceased-Vijaykumar in motor vehicle accident along with interest @6% from the date of the accident within a period of 30 days. The opponent no.1-present appellant was directed to pay amount of Rs.1,09,235/- as 50% penalty on the amount of compensation within period of 30 days. 2.5 The present appellant has challenged the said impugned judgment and award by preferring this appeal. 3. Heard learned advocate Mr. Robin Prasad for Mr. Subramaniam Iyer for the appellant. 4. The opponent no.1-present appellant was directed to pay amount of Rs.1,09,235/- as 50% penalty on the amount of compensation within period of 30 days. 2.5 The present appellant has challenged the said impugned judgment and award by preferring this appeal. 3. Heard learned advocate Mr. Robin Prasad for Mr. Subramaniam Iyer for the appellant. 4. Learned advocate for the appellant has submitted that the learned Commissioner has not followed the provisions of section 4A(3) and proviso of the Act while passing an order of penalty against the present appellant-employer. He has further submitted that the order for penalty cannot be passed under clause(b) without giving reasonable opportunity to the employer to show cause as to why the penalty should not be imposed. It was mandatory for the Commissioner to issue show cause notice to the employer before passing any order and give reasonable opportunity to defend his case as to why penalty should not be imposed. In the present case, no separate notice was issued to the present appellant to show cause as to why penalty should not be imposed and the appellant was not heard by the learned Commissioner before imposing penalty. In alternative, learned advocate for the appellant has submitted that penalty to the extent of 50% imposed by the learned Commissioner was very much on higher side. That, no reasons were assigned by the learned Commissioner while imposing penalty to the extent of 50%. In support of his arguments, learned advocate for the appellant has placed reliance in case of Ved Prakash Garg Versus Premi Devi & Others reported in (1997) 8 SCC 1 and ultimately, requested to quash and set aside the impugned judgment and award dated 04.08.2004 passed by the learned Commissioner in W.C. Application No.45 of 1998 imposing 50% penalty on the present appellant and alternative to reduce the amount of penalty. 5. From the other side, nobody appears from the respondent nos.1-3. However, notice was served to the respondent no.4, nobody had attended this proceeding. At a request made by this Court to Mr. G.C. Majmudar, learned penal advocate of the respondent no.4 to represent this proceedings on behalf of the respondent no.4, he proceeded with the matter and assisted the Court. 6. However, notice was served to the respondent no.4, nobody had attended this proceeding. At a request made by this Court to Mr. G.C. Majmudar, learned penal advocate of the respondent no.4 to represent this proceedings on behalf of the respondent no.4, he proceeded with the matter and assisted the Court. 6. Learned advocate for the respondent no.4 has submitted that as per the facts of the case before preferring application under the Act, notice was duly served to the opponent no.1 to pay the amount of compensation but, opponent no.1 failed to pay the amount of compensation within a period of 30 days. That, section 4A(3)(b) and proviso of the Act, of course, prescribe to issue show cause notice before passing order of penalty to the employer. That, in the petition preferred by the applicants, show cause notice was duly served to the opponent no.1-employer of the motor vehicle. That, he was appeared before the Court through his advocate but did not choose to participate later on nor to file any written statement before the learned Commissioner in petition preferred by the applicants. That, imposing penalty of 50% was the discretion of the learned Commissioner. That, separate notice as argued by the learned advocate for the appellant would not require to be issued by the learned Commissioner during the course of the pendency of the application preferred by the applicants. That, on filing application requesting to award compensation along with penalty, show cause notice was issued by the learned Commissioner to the present appellant which was duly served to him. The contention of issuing notice during the proceedings before the learned Commissioner cannot be sustained, as there is no substance in the appeal and it was requested by him to dismiss the appeal. 7. Having perused the record of the learned Commissioner and arguments advanced by the learned advocates for the respective parties, it appears that in claim petition preferred by the applicants, it was prayed by the applicants to pay compensation of Rs.2,18,470/- along with interest @ 18% per annum and 50% penalty holding liability of the opponents as the opponents failed to pay the amount of compensation within a period of 30 days. From the record of the trial, it appears that notice was issued by the learned Commissioner and was duly served to the present appellant-employer-opponent no.1. From the record of the trial, it appears that notice was issued by the learned Commissioner and was duly served to the present appellant-employer-opponent no.1. That, Vakalatnama was also filed on behalf of the present appellant on 30.12.1998 vide Exh.6. Thereafter, it appears that no written statement was filed by the present appellant nor any participation was made by him during the course of the proceedings. That, certain documents were produced on record by the applicants i.e. Post Morterm note, certificate issued by the opponent no.1 certifying that the deceased was serving with him on jeep, bearing registration no. GJ-6-K-5106 and deceased paid Rs.2500/- per month by way of salary dated 25.03.1998, marksheet issued by GSE Board, Gandhinagar, copy of the driving license etc. That, mother of the deceased was examined before the learned Commissioner. She has specifically stated that her son namely Vijaybhai Somabhai Mali was serving as driver of jeep, bearing registration no.GJ-6-K-5106 with the opponent no.1. On 06.03.1998 at about 3.30 a.m in the morning, near Dabhoi- Vega Chowkdi, the accident was occurred wherein her son sustained injuries, hospitalized and died during the treatment. She has referred all the documents as discussed above. She has further stated that no amount was received from the opponent no.1. That, notice was issued to the opponent no.1 but no reply was received by the applicants. Acknowledgment slip was produced by the applicants. No cross examination of this witness was carried out by the opponent no.1. Driving license of the deceased was also produced on record. Section 4A(1)provides compensation to be paid as soon as it falls due. Section 4A (1)(2)(3)(a)(b) reads as under: Section 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 workman, as the case may be, without prejudice to the right of the workman to make any 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 therein at the rate of twelve per cent 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 per cent of such amount by way of penalty. It further provides that if the order of penalty shall not be passed under clause (b) without giving reasonable opportunity to the employer to show cause as to why it should not be passed. It is true that reasonable opportunity to the employer by issuance of show cause notice before passing order of penalty against the employer was the requirement under the Act. Here also after filing of the application preferred by the applicant, show cause notice was mandatorily issued by the learned Commissioner and present appellant was appeared though his advocate who in due course has filed vakalatnama before the Court of learned Commissioner on 30.12.1998. Thereafter, it appears from the record that no written statement was filed by him nor he choosen to cross-examine applicant no.1-mother of the deceased. He was not entered into the witness box raising the dispute that no show cause notice was issued to him or no opportunity was given to him. As the appellant himself did not select to participate in the proceedings before the learned Commissioner, he cannot raise such dispute that no reasonable opportunity was given to him or no show cause notice was issued to him by the learned Commissioner before passing the order of penalty. That, opportunity was certainly given to the present appellant by the learned Commissioner, and therefore, the order was passed against the opponent nos.1 and 2. The present appellant himself did not select to challenge the proceedings before the learned Commissioner, and therefore, he himself is liable to face consequences whatever may be. That, opportunity was certainly given to the present appellant by the learned Commissioner, and therefore, the order was passed against the opponent nos.1 and 2. The present appellant himself did not select to challenge the proceedings before the learned Commissioner, and therefore, he himself is liable to face consequences whatever may be. Section 4A (3)(b) provides that if as per the opinion of the learned Commissioner, if there is no justification for the delay, he would direct the employer in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty. Here, also learned Commissioner has not exceeded amount of penalty as provided under the Act. It is discretion of the learned Commissioner to impose penalty to the maximum limit as prescribed at 50% of amount of compensation. Learned Commissioner has committed no error in imposing penalty of 50% while passing the order against the present appellant-employer. Here, present appellant was clearly failed in making payment under Section 4A(3)(a) of the Act. The Hon’ble Supreme Court in para 9 of the judgment reported in (1997) 8 SCC 1 has observed as under: “In that light when sub-section (3) of Section 4-A is seen it becomes obvious that once the compensation due under the Act becomes ascertained either provisionally under sub-section (2) or finally on adjudication by the Commissioner and if the employer does not pay the same within one month from the date it thus falls due, the Commissioner can direct under sub-clause (a) of Section 4- A(3) interest at the rate provided therein and also penalty as contemplated by sub-clause (b) thereof as per the amended Section 4-A(3) of the Compensation Act. Even under the unamended Section 4-A(3) which applied at the relevant time a clear distinction was made by the legislature between the imposition of penalty by way of a further sum not exceeding fifty per cent of compensation amount and the imposition of interest on the amount of compensation found payable when it is not paid within the requisite time as and when it fell due.” 8. Accordingly, this Court is of the considered view that the judgment and order passed by the learned Commissioner, challenged before this Court, in any way, cannot said to be illegal or perverse. Hence, this appeal is hereby dismissed. Accordingly, this Court is of the considered view that the judgment and order passed by the learned Commissioner, challenged before this Court, in any way, cannot said to be illegal or perverse. Hence, this appeal is hereby dismissed. In the facts and circumstances of the case, no order as to costs. Record and Proceedings be sent back to the learned Commissioner forthwith.