JUDGMENT : 1. Heard learned Senior advocate Mr. Anshin H. Desai for appellant and learned Mr. Shashikant S. Gade for respondent No.3. 2. The present First Appeal is filed under Section 30 of the Workmen Compensation Act, 1923 (hereinafter referred to as ‘the Act’). 3. The brief facts of the case are as under:- 3.1 The deceased-Meghrajji Natubha @ Jatubha was serving as a Watchman with the present appellant. During the course of employment on 08.12.1991, an accident took place and on 09.12.1991, workman died in Hospital. The deceased was earning Rs.750/- per month by way of salary plus overtime bonus etc. The deceased was aged about 45 years at the relevant time. The Claim Application was filed by the heirs of the deceased claiming of compensation of Rs.55,200/- from the original opponents with penalty plus interest @ 18% p.a. 3.2. Appellant appeared in the proceedings and filed written statement and denied their liability mainly on the ground that the workman was appointed by the respondent No.2 and hence, present appellant is not liable to pay compensation to the original claimants i.e. present respondent Nos.1.1 to 1.5. Opponent No.3 i.e. Insurance Company also filed its written statement and denied the coverage of risk and also denied its liability. 4. Learned Senior advocate Mr. Anshin H. Desai for the appellant has submitted that the impugned judgment and order is bad in law, more particularly, the learned Labour Court wrongly exonerated the respondent No.3 from its liability of compensation. It is further submitted that on the date of accident, the Insurance was in existence. Since original policy was not produced by the Insurance Company, the same was exonerated from its liability. However, the document i.e. the Insurance Policy for the period from 10.09.1991 to 10.09.1992, which was on record gives clear indication of covering the date of accident. 4.1 It is further submitted that the learned Commissioner has failed to appreciate the Exhibit-46, which is the date i.e. 10.09.1992 is shown as a “renewal date” of the policy. It is further submitted that the learned Commissioner has committed an error in considering the renewal date as the date of period of Insurance i.e. from 22.10.1992 to 21.10.1993. It is further submitted that the Insurance Company was also called upon vide Exhibit-38, to produce the Policy No.41/00185-92 covering the period of 11.09.1991 to 10.09.1992. It is further submitted that the learned Commissioner has committed an error in considering the renewal date as the date of period of Insurance i.e. from 22.10.1992 to 21.10.1993. It is further submitted that the Insurance Company was also called upon vide Exhibit-38, to produce the Policy No.41/00185-92 covering the period of 11.09.1991 to 10.09.1992. However, the Insurance Company did not produce the copy of Policy. 4.2 Learned Senior advocate for the appellant has further submitted that Section 4(A) of the Act is amended on 15.09.1995. The accident in the present case resulting into death of the workman has occurred on 08.12.1991, which was prior to introduction of Section 4(A) of the Act and the applicable rate of compensation was to be calculated at “an amount equal to 40% of the monthly wages of the deceased workman multiplied by the relevant factor”. The learned Commissioner has calculated the amount of compensation at the rate of 50% (as per the amending Act), despite the accident took place prior to coming into force of the amended Section. 4.3 In support of his submissions, learned advocate for the appellant has placed reliance upon the decision of Hon’ble Supreme Court in the case of Kerela State Electricity Board and Another Versus Valsala K. and Another reported in (1999) 8 SCC 254 . 5. Per contra, learned advocate for the respondent No.3 i.e. Insurance Company has submitted that there are no reasons to interfere with the findings of fact, which have been arrived at by the learned Commissioner. The learned advocate for the respondent No.3 has mainly supported the findings and observations made by the learned Commissioner. It is further submitted that on the date of accident there was no Insurance and looking to the said fact, the learned Commissioner has rightly exonerated the respondent No.3-Insurance Company from its liability of compensation. It is further submitted that so far as the penalty and interest are concerned, it is always on the shoulder of the Employer. 6. I have considered the submissions and the record and proceedings. The deceased was in the employment of respondent No.2 on 08.12.1991. Respondent No.2 has not filed any written statement and not denied the fact that the deceased was appointed by respondent No.2 as a Watchman. 6. I have considered the submissions and the record and proceedings. The deceased was in the employment of respondent No.2 on 08.12.1991. Respondent No.2 has not filed any written statement and not denied the fact that the deceased was appointed by respondent No.2 as a Watchman. There is no dispute with regard to the occurrence of accident, salary of the deceased, age of the deceased and the dependency of the original claimants. 7. The limited issues involved in the present case, are two folds; firstly, on the date of accident whether there was a valid insurance coverage and the secondly, as per the introduction of Section 4(A) in the Workmen Compensation Act, whether the Commissioner has committed any error in applying the percentage while calculating the amount of compensation. 8. Section 4(A) of the Act is amended on 15.09.1995, whereas the accident took place prior to the amendment. The compensation as per the Section 4, prior to the amendment was to be calculated at the rate of 40%. However, the learned Commissioner has committed an error of law in applying the ratio of rate of percentage. The learned Commissioner has applied the ratio of the rate of compensation at 50% of the monthly wages of deceased workman. The ratio of rate of percentage was increased from 40% to 50% of the monthly wages of deceased workman from 15.09.1995. Prior to 15.09.1995, such rate of percentage of monthly wages was 40%. Thus, the judgment and order passed by the learned Court Commissioner is required to be modified looking to the fact of the present case as per the following calculation Age Salary Salary at 40% (Rs.) Multiplying factor Total (Rs.) 45 years 600/- 240/- 169.44 40,665.60/- 9. The next question for consideration is whether the Insurance Company has been rightly exonerated from its liability or not, it would be apt to refer Exhibit-46 which is wages adjustment statement issued by the Insurance Company, wherein the policy No.41/00185/92 and the renewal date 10.09.1992 is mentioned. This Court is of the view that the learned Commissioner has committed an error by not considering this vital document. Renewal date is mentioned as 10.09.1992. However, the learned Commissioner has taken period of insurance as 22.10.1992 to 21.10.1993. And by misreading Exhibit-46, Insurance Company was exonerated. This Court is of the view that the learned Commissioner has committed an error by not considering this vital document. Renewal date is mentioned as 10.09.1992. However, the learned Commissioner has taken period of insurance as 22.10.1992 to 21.10.1993. And by misreading Exhibit-46, Insurance Company was exonerated. The learned advocate for the Insurance Company also could not refuse Exhibit-46 and could not refuse the fact that date of 10.09.1992 is the renewal date of Insurance. Even more, the notice to produce Policy document was also given to Insurance Company vide Exhibit-38, however Insurance Company did not produce the relevant policy document. Hence, adverse inference can be drawn against Insurance Company and Exhibit-46 Statement is taken as the period covering the date of accident. In absence of any rebuttal evidence on the part of respondent No.2 and 3, I am of the view that there was a valid Insurance on the date of accident. 10. Thus, in my view, the learned Commissioner has committed an error by exonerating the Insurance Company from its liability. 11. Thus, in view of the totality of the facts, the present First Appeal is partly allowed. The amount of compensation is modified as under:- Age Salary Salary at 40% (Rs.) Multiplying factor Total (Rs.) 45 years 600/- 240/- 169.44 40,665.60/- 12. It is further directed that the modified amount of compensation of Rs.40,665.60 paise shall be recovered from the respondent No.3-Insurance Company. The claim petition for compensation against the appellant is hereby dismissed. 13. The appellant as well as respondent No.2 are jointly and severely liable for the penalty and interest. The appellant as well as respondent No.2 shall be liable for penalty and interest at the rate of 6% per annum on modified amount of Rs.40,665.60 paise from the date of accident, till realization. 14. Record and proceedings be sent back to the learned trial Court below forthwith.