JUDGMENT
R.D. Shukla, J.
1. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) has been preferred against the Judgment and Order dated October. 6, 1988 of Commissioner For Workmen’s Compensation, Labour Court, Ratlam passed in case No. 25/87 whereby Respondent No. 1 and her husband Mohan Singh (since deceased) has been awarded a compensation of Rs. 83,968/- and penalty of Rs. 40,000/- for the death of Bansilal who died during the course of employment as second driver of Dashrath Kothan-respondent No. 2.
2. Undisputed facts of the case are that Bansilal was working as second driver in a motor truck bearing registration No. MBU 6626 owned by Dashrath Kothari respondent No. 2. There was motor accident on August 15, 1985 and Bansilal died as a result thereof. Notice for claim was sent to the owner and Insurance Co, on October 19, 1985. The claim was preferred on November 20, 1985. Service was effected on owner and Insurance Co. on April 16, 1987. They filed written statements on April 12, 1988. The Commissioner pronounced judgment on October 6, 1988 and awarded compensation of Rs. 83,968/- with interest at the rate of 6% P. A. from the date of award and further awarded Rs. 40,000/- as penalty as per provisions of Section 4A of the Act , as the owner and Insurance Company failed to deposit the amount, hence; this appeal.
3. Contention of learned counsel for the appellant is that penalty has wrongly been imposed . Second contention of the learned counsel is that the delay was caused by the owner and, therefore the Insurance Co. could not be saddled with liability of payment of penalty. Learned counsel has also disputed about quantum of wages payable to deceased Bansilal.
4. As against it learned counsel for the respondent submitted that despite notice and non-challenge of death, during the course of employment, the Insurance Co. and the owner failed to deposit the amount and, therefore, penalty has rightly been imposed.
5. We have perused the written statement filed by the owner of the vehicle. Though death from the Truck has been disputed but there is no dispute as to the death during the course of employment . Written statement was filed by Dashrath Kothari on April 30, 1986. In such a situation it was incumbent upon the owner and the Insurance Co. to have deposited the compensation which was due to the heirs of the deceased as per their own calculation. So far as wages of deceased are concerned, the owner of the truck Dashrath Kothari has stated that Bansilal was working as second driver and he was being paid Rs. 600/- per month, but no document or register has been produced.
As against it Sunderbai mother of the deceased has stated that Bansilal was getting Rs. 1000/- P.M. Narayansingh has also stated that Bansilal was getting Rs. 1000/- per month. Owner Dashrath Kothari must have been keeping accounts regarding payment of wages to the workers including deceased Bansilal. It appears that the documents have purposely been withheld and, therefore, an adverse inference has to be drawn and it has rightly been held by the Commissioner of Workmen’s Compensation. Even otherwise this fact is not open in appeal before this Court. In this case perversity or rejection of material piece of evidence is demonstrated. We do not find anything of the sort and, therefore, this contention of the learned counsel for the appellant cannot be accepted.
6. Next contention of the learned counsel for the appellant is that no issue was framed as to the delay and no opportunity for explaining delay has been given to the Insurance Co. In such cases strict rule of pleadings is not required to be adhered to. In our opinion, therefore, the Commissioner can award penalty and interest in default of payment even without framing issue (see Divisional Engineer MPEB and Anr. v. Mantobai)(1990-I-LLJ-25) (MP)). Recently on a reference, a Division Bench of this Court in M.A. 40/89 (NewIndia Ins. Co. v. Smt. Tarabai and Ors.) has held that ‘before imposing penalty, employer and the Insurance Co. will have to be given an opportunity for the explanation of delay and if the employer is solely responsible for the delay, the Insurance Co., may take appropriate steps for recovery of the amount of penalty from the employer’. Wherein, in this case the Insurance Co. has filed reply on April 12, 1986 and employer Dashrath Kothari filed reply on April 30, 1988. From the pleadings of Dashrath Kothari itself it was evident that Bansilal died during the course of employment while on duty on the truck. Thus it was in the notice of the Insurance Co. Despite that no attempt was made.
7. Counsel for the claimant (respodent here) has submitted that payment has been made after about six months from the date of award. Thus delay in payment was wilful. In such a situation it cannot be said that penalty is wholly unjustified. However, we made query from the learned counsel for the appellant as to why after coming to know of the death of Bansilal during the course of employment, the payment was not made, learned counsel for the appellant could not give satisfactory reply. In such a situation it would not be proper to remand the case. However, the Insurance Co. is still free to take appropriate steps for recovery of penalty if according to their own information the delay was solely due to negligence of the injured/employer. Though it is true that for the purpose of imposing penalty the Commissioner has to pass a reasoned order, he is also required to fix liability in case of delay. The Commissioner was further required to give reason for arriving at the figure regarding amount of penalty. There is no discussion in the judgment on these points. Since it is a case of workman and strict rule of pleadings did not apply, we ourseleves examined the issue including adequacy of penalty imposed . The accident in this case occurred in August 1985. Notice was issued on October 19, 1985. Service of claim was effected on April 17, 1986. No payment was made till date of judgment. Thus there was delay in payment for more than three years and if the interest is calculated at the rate of 12 to 15% P.A. the same would come to 36 to 45%. The Commissioner has awarded interest from the date of award. In normal course interest ought to have been awarded from the date of application unless the delay was solely due to negligence of claimant. Thus any amount in excess of interest calculated above, can be taken in adjustment for not making order for payment of interest from the date of application.
8. Learned counsel for the respondent submitted that claimant be allowed interest from the date of application. As discussed in earlier paragraph, we have taken it into consideration while calculating adequacy of the amount of penalty and as the claimant stands compensated by way of penalty, we are not required to direct payment of interest from the date of application.
9. In our opinion, therefore, there is no substance in this appeal. It is accordingly dismissed with cost. Counsel’s fee Rs. 500/- if certified.