JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Present appeal is filed by the appellant-New India Assurance Company Limited against the judgment and award dated 01.12.2006 passed by the learned Commissioner for Workmen's Compensation at Kutch- Gandhidham (hereinafter referred to as the "Commissioner") in Workmen's Compensation (Fatal) No.21 of 2006, whereby the learned Commissioner directed the insurance company to pay interest @ 12% on the amount of Rs.2,62,080/- for a period of 5.11.2005 to 5.5.2006 and amount of penalty of Rs.1,00,000/- within period of 30 days. 2. The short facts giving rise to present appeal are as under:- 2.1 The deceased Sakrabhai Merambhai Rabari was working with original opponent No.1 as helper. On 5.11.2005 he was died on duty. The widow of the deceased filed application before the Workmen's Commissioner for compensation under Workmen's Compensation Act. The insurance company had deposited an amount of Rs.2,62,080/- towards compensation without interest and penalty. Therefore, the widow of the deceased has prayed that opponents are liable to pay penalty and interest @ 12%, as the insurance company failed to deposit the amount of compensation within period of 30 days from the date of accident. 2.2 After hearing the parties and after evaluating the evidence placed on record, learned Commissioner directed the insurance company to pay interest @ 12% on the amount of Rs.2,62,080/- for a period of 5.11.2005 to 5.5.2006 and amount of penalty of Rs.1,00,000/- within period of 30 days. 2.3 Being aggrieved and dissatisfied with the order passed by learned Commissioner, the insurance company has filed present appeal. 3. I have heard Mr. K.V. Gadhia, learned counsel for the appellant. Though served respondents have chosen not to remain present before this Court. 4. Learned advocate for the appellant has submitted that the appeal is restricted only qua the issue of liability of penalty fasten upon the appellant insurance company and so far as interest is concerned, this issue is now not in res-judicata that the liability to pay the penalty is upon the insurer and not on the insurance company. 4.1 So far as interest period is concerned, it is only for six months therefore, this Court is not inclined to interfere qua interest in peculiar facts. 4.2 Mr. 4.1 So far as interest period is concerned, it is only for six months therefore, this Court is not inclined to interfere qua interest in peculiar facts. 4.2 Mr. Gadhia, learned advocate for the appellant urges before the Court that present appeal may be allowed and the impugned award passed by Commissioner for Workmen's Compensation may be quashed and set aside or the same may be appropriately modified. 4.3 Mr. Gadhia, learned advocate for the appellant- insurance company has relied upon the judgment of Hon'ble Apex Court in case of New India Assurance Co. Ltd. vs. Harshadbhai Amrutbhai Modhiya and another reported in (2006) 5 SCC 192 and more particularly paragraph Nos.12, 13, 14, 15 and 17 which read as under:- "12. Section 8 stipulates the manner in which the amount of compensation would be distributed. Sub-section (4) of Section 8 reads as under: "8. (4) On the deposit of any money under sub-section (1), as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made." 13. Section 12 of the Act provides for the mode and manner of payment of compensation by a principal employer and/ or his contractor. Section 17 of the Act nullifies contracting out in the following terms: "17. Contracting out.- Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act." 14. By reason of the provisions of the Act, an employer is not statutorily liable to enter into a contract of insurance. By reason of the provisions of the Act, an employer is not statutorily liable to enter into a contract of insurance. Where, however, a contract of insurance is entered into by and between the employer and the insurer, the insurer shall be liable to indemnify the employer. The insurer, however, unlike under the provisions of the Motor Vehicles Act does not have a statutory liability. Section 17 of the Act does not provide for any restriction in the matter of contracting out by the employer vis-`-vis the insurer. 15.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 minimize 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. 17. 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 therefrom but not the penalty imposed on insurer employer for default of payment of amount stating: "5. 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 v. 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. 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. The appeal is allowed in part accordingly." 4.4 Mr. Gadhia, learned advocate for the appellant- insurance company has also relied upon the decision of this Court in case of Gautam Tansport, Bhavnagar vs. Jiluben Huseinbhai and others reported in 1989 ACJ 587 and more particularly, paragraph No. 5 which reads as under:- "5. Mr. Damani tried to refer to section 95 of the Motor Vehicles Act for substantiating his argument that the insurance company would be responsible for indemnifying the insured for the liability under the Workmen's Compensation Act as well. The provision would not be relevant for the purpose of this matter and even if we were to hold that for determining the conditions of the policy, section 95 of the Motor Vehicles Act can be looked into, then also the clear fact that the contract of insurance is a contract of indemnity cannot be lost sight of. The insurance company while issuing an insurance policy only assures that it shall indemnify the assured for all liability which might be springing from the type of risk covered by the insurance policy issued by it. The liability for the penalty arises on account of clear violation of the statutory provisions of the Workmen's Compensation Act and the insurance company cannot be saddled with the responsibility of indemnifying the assured if the assured acts in clear violation of a statutory requirement. The contract of indemnity also necessarily postulated that the person indemnified has to act in a way in which the damages are mitigated. The contract of indemnity also necessarily postulated that the person indemnified has to act in a way in which the damages are mitigated. If by his negligence, he incurs an additional responsibility for having violated the statutory requirements, then the insurance company cannot be asked to indemnify blanket licence to the assured for violating the statutory requirement and in some unforeseen cases, it might even land us in a situation where the assured and the claimant may join hands to fleece the indemnifier, i.e., the insurance company, of a sizeable amount. Such could never be the intention of the provision in the Workmen's Compensation Act or the Motor Vehicles Act,so far as the insurance policy,viz., the contract of indemnity is concerned. Under the circumstances we do not find any substance in the present appeal which requires to be dismissed at the admission stage. Though it is not relevant, it may be stated that one of us (Gheevala J.), while deciding First Appeal No. 349 of 1983, by an order dated August 12, 1983, had taken the same view., viz., that for the amount of penalty, the insurance company cannot be held responsible. We do not see any reason to deviate from that view because there is no reason for such deviation,but rather there is everything in the statute to support the same." 5. I have perused the material and documents available on record as well the record and proceedings. I have also gone through the impugned judgment and award passed by the learned Commissioner. 6. At this stage, it is appropriate to take into account the observations made by Hon'ble Apex Court in case of Fulmati Dhramdev Yadav vs. New India Assurance Co. Ltd. reported in 2023 (12) Scale 71 , wherein Hon'ble Apex Court has held as under:- "Analysis and Consideration 14. The act governing the present dispute, i.e., the Workmen Compensation Act, 1923, has been, vide The Workmen’s Compensation (Amendment) Act, 2009, amended, by which the word “workmen” has been substituted by “employees” rechristened as the Employees Compensation Act, 1923. 15. What this Court must consider is whether the impugned judgement is sustainable in law? On merits, the consideration would be whether the order of the Commissioner, in light of the materials on record, can stand or not? 15. What this Court must consider is whether the impugned judgement is sustainable in law? On merits, the consideration would be whether the order of the Commissioner, in light of the materials on record, can stand or not? In other words, the impugned judgement must stand true on two grounds, (i) statutory text; and (ii) whether the materials on record support the conclusion drawn therein or not? 16. Appeals within the act are governed by Section 30 which is extracted below for reference: – “30. Appeals. In other words, the impugned judgement must stand true on two grounds, (i) statutory text; and (ii) whether the materials on record support the conclusion drawn therein or not? 16. Appeals within the act are governed by Section 30 which is extracted below for reference: – “30. Appeals. — (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely :— an order awarding as compensation a lump sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; 1 [(aa) an order awarding interest or penalty under section 4A;] (b) an order refusing to allow redemption of a half- monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased 6 [employee], or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions: Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than 2 [ten thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify]: Provided, further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties: [Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.] (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of 4 [the Indian Limitation Act, 1963 (36 of 1963)] shall be applicable to appeals under this section.” (Emphasis Supplied) 17. The Act is unequivocal in stating that an appeal from an order of Commissioner can be entertained only if there exists a substantial question of law to be considered. It has been observed by this Court that the phrase “substantial question of law” within this Act shall be understood by its general meaning. When considering the general meaning of this phrase, naturally, the reference is to the Code of Civil Procedure (CPC). The rule therein is that framing of a substantial question of law is of cardinal importance. 18. A bare perusal of the impugned judgement shows that the Court did not frame any such question. 19. The wording of the Act indicates that the existence of such a question is a prerequisite to the appeal being entertained. 20. Illustratively, in North – East Karnataka Road Transport Corporation v. Sujatha7 (Two-Judge Bench) amongst numerous other cases, this Court has observed: “12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case.” 21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of “substantial question of law”, is perversity in the findings. Here, the impugned judgement does not, even remotely, reflect the observation that the findings arrived at by the Commissioner are perverse. The difference, between the two judgements, i.e., the order of the Commissioner and the judgment in First Appeal, was on the point of the employer- employee relationship having been established. The Commissioner held such relationship to have been established however, the appeal Court observed that “claimants have clearly failed to prove this aspect” 7 (2019) 11 SCC 514 22. The difference, between the two judgements, i.e., the order of the Commissioner and the judgment in First Appeal, was on the point of the employer- employee relationship having been established. The Commissioner held such relationship to have been established however, the appeal Court observed that “claimants have clearly failed to prove this aspect” 7 (2019) 11 SCC 514 22. It may here only be noted that the Commissioner had not returned any findings in respect of the validity of non- availability of the license of the deceased nor was it one of the questions framed by the Commissioner for consideration. In such a situation, while exercising powers within the limited purview allowed by section 30 of the Act, the learned Court below erred in making observations and giving a holding in that regard. 23. It has also been observed by this Court that the Commissioner is the last authority on facts involved in a case. In Golla Rajamma & Ors. v. Divisional Manager & Anr.8 (2-Judge Bench) it was observed that “under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to reappreciate the evidence and recorded its own findings on 8 (2017) 1 SCC 45 percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.” 24. Keeping in view the said principles, the impugned judgement, ex-facie, appears to be in contravention thereto." 7. In view of the above observations, the submission of learned counsel for the appellant is that so far as the liability to pay the penalty is concerned, if the awarded amount is not paid to the claimants within 30 days from the date of accident, then only they are entitled for 50% of penalty, as provided under the statute but that liability is cast upon the insured by virtue of the contractual relationship and thus, liability to pay 50% of penalty is upon the insured and not on the insurance company. 8. 8. At this stage, it is also relevant to take into account provision of Section 30 of the Workmen's Compensation Act, which reads as under:- "30. Appeals.— (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely: (a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;(aa)an order awarding interest or penalty under section 4A; (b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased employee, or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or (e)an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions: Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify: Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties: Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section." 9. (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section." 9. The provision of Section 30 of the Workmen's Compensation Act establishes that the High Court cannot interfere in the award passed by the Commissioner unless and until it is satisfied that the substantial question of law is involved in the appeal. The statutory provision restricts the interference of the High Court. However, considering the fact and the limitation to entertain present appeal, more particularly Section 30 of the Workmen's Compensation Act, only the circumstance which is enumerated under Section 30 of the Workmen's Compensation Act, High Court can interfere with the award passed by the Commissioner. In present case, in view of the observations made by Hon'ble Supreme Court in above referred decisions and in view of the decision of the Hon'ble Supreme Court in case of Ved Prakash Garg vs. Premi Devi and others reported in (1997) 8 SCC 1, the liability to pay the penalty is upon the insurer and not upon the insurance company. 10. In view of the above facts and the observations made by Hon'ble Apex Court in the above referred judgment, I am of the opinion that present appeal requires to be allowed in part and the impugned judgment and order is required to be quashed and set aside qua liability of the present appellant. 11. For the foregoing reasons, present appeal is hereby allowed in part. The judgment and award dated 01.12.2006 passed by the learned Commissioner for Workmen's Compensation at Kutch (Gandhidham) in Workmen's Compensation (Fatal) No.21 of 2006 is hereby quashed and set aside qua the liability of the appellant to pay penalty. 12. It is open for the opponent No.1 original claimant to make appropriate application qua penalty against opponent No.1 original employer. 13. If the opponent No. 1 prefers any application qua penalty and the same shall be decided in accordance with law by the concerned authority. 14. The amount deposited by the appellant insurance company towards penalty be returned to the appellant insurance company after due verification through R.T.G.S. or N.E.F.T. along with accrued interest. The record and proceedings, if any, be sent back to the concerned tribunal forthwith.