JUDGMENT
Arun Kumar Goel, J.
1. This is an appeal arising out of the order dated 22.11.1990 passed by the learned Commissioner under the Workmen Compensation [Sub Divisional Officer (C)], Kandaghat District Solan in case No.7of 1990 titled Jasbir Kaur v. S.K. Goyal, whereby an award of a sum of Rs. 80,664/- and penalty of Rs. 40,332 and interest @ 6 per cent on the compensation amount w.e.f. 11.3.1990 has been passed in favour of respondent Nos. 1 to 6 and against the appellant as well as respondent No. 7.
2. Brief facts of the case are that Gurnam Singh was employed as driver by respondent No. 7 and according to the claimant-respondent Nos. 1 to 6, in the course of his employment he received injury in accident resulting in his death on 11.3.1990. Case of the respondents further was that the injury was sustained by the deceased while he was driving the truck bearing registration No. HIS 1155 belonging to respondent No. 7, which met with an accident near Kandaghat on the night intervening 10 and 11.3.1990 and the deceased driver Gurnam Singh died on the spot as a result of the head injury that was sustained by him. The wages of the deceased were Rs. 1,950/- and he was aged about 34 years. It was further pleaded by the respondent Nos. 1 to 6 that the truck in question stood insured with the appellant Insurance Company and the policy was valid up to 1.12.1990. In these circumstances compensation of Rs. 1,55,226.80 was claimed by the claimant-respondent Nos. 1 to 6. Notice for appearance was issued to appellant, as well as respondent No. 7 who did not appear and as a result of such non-appearance on 23.7.1990 he was proceeded against ex-parte before the Commissioner, Appellant appeared and filed its reply before the learned Commissioner and it contested and resisted the claim of respondent-claimant Nos. 1 to 6.
3. On the pleadings of the parties the learned Commissioner framed following issues:
(1) Whether the applicants are entitled to compensation? If so, to what amount? OPP.
(2) Relief.
4. Jasbir Kaur appeared as her own witness, besides examining two more witnesses, namely, Gurucharan Singh, PW 2 and Pritam Singh, PW 3. So far the statement of PW 3 is concerned it is general in nature and it is merely his opinion which is of no consequence on thewages aspect of the driver. RW1 is an Assistant Administrative Officer of the appellant who has produced the copy of insurance policy, Exh. RW 1/A and on the date of accident this policy covered the vehicle in question. It is in the background of the aforesaid circumstances as well as evidence that the submissions made on behalf of the parties have to be examined in the present appeal.
5. Mr. K.D. Sood, learned Counsel for the appellant Insurance Company, has vehemently argued that the impugned award cannot be sustained to the extent that the appellant is not liable for the payment of interest and penalty as ordered by the learned Commissioner in the impugned award and according to him this is a substantial question of law for consideration in the present appeal.
6. In support of this submission he has placed reliance on two Division Bench judgments of this Court in Oriental Insurance Co. Ltd. v. Atnar Singh F.A.O. No. 18 of 1993; decided on 24.7.1994 and Dromati Devi v. Sohan Singh . As per law laid down in both these cases, the case of the appellant on this question is squarely covered and to this extent the appeal deserves to be allowed and it is ordered accordingly. As a result of this, it is ordered that the appellant-Insurance Company is not liable for the payment of penalty to the extent of Rs. 40,332/- and interest @ 6 per cent as levied on the compensation amount w.e.f. 11.3.1990 till the date of payment. It may not be out of place to mention in this context that a sum of Rs. 1,25,836/- stands already deposited by the appellant with the learned Commissioner as is evident from certificate filed along with this appeal. The liability for payment of this penalty and interest is that of respondent No. 7 who being the employer was liable for the payment of the amount in question. He neither informed the appellant Insurance Company regarding the accident in question nor provided the necessary documents/ information, etc., to it, not only this but he further chose to abstain during the course of the proceedings before the learned Commissioner as is evident from the record of the Commissioner.
7. Similar view has been taken by the Karnataka High Court in cases reported in Oriental Insurance Co. Ltd. v. Raju , as well as in Oriental Insurance Co. Ltd. v. Hazira Begum .
8. Mr. Bhogal, learned Counsel appearing for respondent No. 7, has argued that the two Division Bench judgments of this Court above noted need reconsideration and the matter may be referred to a larger Bench as, according to him, the liability for the payment of compensation, interest as well as penalty, is that of the appellant, Insurance Company and after charging the premium, according to him, it is the bounden duty of the appellant to satisfy the award in question.
9. We find no reason either to refer the matter to a larger Bench as prayed for by Mr. Bhogal or to disagree with those judgments, as such this plea is rejected. It may not be out of place to mention in this context that had respondent No. 7 lodged all the proper and relevant documents while furnishing information of the accident in question together with proof of age and monthly wages of the deceased driver in accordance with law and deposited the amount of compensation as envisaged under law with the Commissioner, then something could be said in support of the submission of Mr. Bhogal. In the instant case there is positive evidence of Manohar Lal, RW 2, Assistant in the office of the appellant-company, to the effect that no information was provided either by the owner or by the claimants and in the absence thereof liability could not be ascertained. It may not be out of place to clarify here that it is liability of the employer, i.e., respondent No. 7 to have paid the compensation and the liability of the appellant is only that of indemnifier. On this ground also the submission of Mr. Bhogal deserves to be rejected and it is ordered accordingly.
10. As a result of the aforesaid discussion, the appeal is partly allowed thereby setting aside the findings so far those relate to the payment of penalty and 6 per cent interest by the appellant, while holding so it is further ordered that this amount of penalty and interest deposited by the appellant with the learned Commissioner under the Workmen’s Compensation [SDO (c)], Kandaghat, District Solan, in Case No. 7 of 1990; decided on 22.11.1990, titled Jasbir Kaur v. S.K. Goyal hereby ordered to be refunded to the appellant-Insurance Company and it is further held that this amount shall be payable by respondent No. 7, S.K. Goyal, who shall deposit the same with the learned Commissioner within a period of two months from today. In case the entire amount of Rs. 1,25,836/- as deposited by the Insurance Company with the learned Commissioner has been withdrawn by the respondent Nos. 1 to 6, then in that event on the amount being deposited by respondent No. 7 with the Commissioner within the stipulated time, the same would be refunded to the appellant-Insurance Company. No costs.