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FA/43119/1992 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 431 of 1992
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ORIENTAL
INS. CO. LTD. - Appellant(s)
Versus
LAXMIBEN
CHUNILAL PRAJAPATI & 1 - Defendant(s)
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Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1,
RULE SERVED BY DS for Defendant(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 16/09/2008
ORAL
ORDER
1. By
way of this appeal, the present appellant-original opponent
no.2-insurance company has challenged the order dated 28.06.1991
passed by the Labour and Ex-Officio Commissioner for Workmen’s
Compensation, Baroda in Workman Compensation Case No. 47 of 1990
whereby the Commissioner allowed the claim and awarded Rs. 75,824/-
and penalty at Rs. 37,912/-.
2. The
present opponent nos.1-original applicant filed claim petition vide
Workman Compensation application no. 47 of 1990 under the Workman
Compensation Act against the present appellant and the present
opponent no. 2 to tune of Rs. 1,40,000/- in respect of the accident
which occurred while the deceased Chunilal Prajapati was driving the
matador owned by the original opponent no.1 with passengers enroute
Mount Abu. While the bus was stationed for paying tax, it appeared
that the bus started going downhill and while trying to stop the bus,
the said Chunilal Prajapati got crushed under the bus. As a result
of the said accident, Chunilal Prajapati expired. The original
claimant, being the legal heir and representative of the deceased,
thereafter, filed the aforesaid claim petition. After hearing the
parties, the authority passed the aforesaid award.
3. Mr.
Mehta, learned advocate appearing for the appellant has submitted
that the judgement and award passed by the authority is improper and
unjust to some extent and against the provision of law and facts and
circumstances of the case. He has submitted that the Commissioner
ought to have considered the provisions of Workmen’s Compensation
Act, 1923 and exonerated the appellant insurance company from the
liability of the penalty.
3.1 Mr.
Mehta has further submitted that having regard to the contract of
insurance, the insurer was not liable to pay any penalty on the
awarded sum. In support of this submission, learned advocate has
placed reliance on a decision of the Apex Court in the case of Ved
Prakash Garg vs. Premi Devi reported in AIR 1997 SC 3854 and
submitted that the insurance companies will be liable to make good
not only the principal amounts of compensation payable by insured
employers but also interest thereon if ordered by the Commissioner to
be paid by the insured employers. However they would not be liable to
pay the penalty imposed under S. 4A (3) (b).
4.
Though served none appears for the respondents.
5. This
Court has gone through the documents placed on record including the
award of the authority. However, the prayer made in this appeal is
required to be entertained in view of the decision of the Apex Court
in the case of Ved Prakash Garg (supra) of wherein it is observed
that when an employee suffers from an injury while on duty on the
motor vehicle belonging to the insured employer, the claim for
compensation payable under the Compensation Act along with interest
thereon, if any, as imposed by the Commissioner Sections 3 and
4A(3)(a) of the Compensation Act will have to be made good by the
insurance company jointly with the insured employer. But so far as
the amount of penalty imposed on the insured employer under
contingencies contemplated by Section 4-A (3) (b) is concerned as
that is on account of personal fault of the insured not backed up by
any justifiable cause, the insurance company cannot be made liable to
reimburse that part of the penalty amount imposed on the employer.
The latter because of his own fault and negligence will have to bear
the entire burden of the said penalty amount with proportionate
interest thereon if imposed by the Workmen’s Commissioner. In that
view of the matter, the insurance company is not liable to pay the
penalty as awarded by the Commissioner. This appeal is therefore
required to be allowed.
6. In
the premises aforesaid, appeal is allowed. The award passed by the
Commissioner under the Workman Compensation Case in Workman
Compensation Case No. 47 of 1990 is quashed and set aside qua
liability of penalty payable by the insurance company. The
amount of penalty of Rs. 37,912/-, if deposited, by the insurance
company shall be refunded to the insurance company. However, if the
amount is withdrawn by the original claimant, the same shall not be
recovered from the original claimant. It will be open for the
insurance company to recover the amount of penalty from the owner-
present respondent no.2 and if the amount is not paid to the claimant
it will be open for the claimant to recover the same from the
owner-present respondent no.2. The award of the Commissioner is
modified accordingly. No order as to costs.
(K.S.
JHAVERI, J.)
Divya//
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