JUDGMENT
1. This appeal by the owner of the lorry bearing registration No. CNS 5837 is directed against the judgment and award dated 27-8-1986 passed by the Commissioner for Workmen’s Compensation, Tumkur in W.C.A.C.R. No. 13 of 1985 on his file in so far as it relates to the penalty of Rs. 11,532-40 ps. made payable by the owner of the lorry.
2. There is no quarrel between the parties as to the compensation amount awarded. But the appellant who is the owner of the lorry and “the employer of Nazir Ahmed has challenged the penalty levied on him under Section 4-A(3) of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) by the Commissioner for Workmen’s Compensation.
3. Sri K. Prabhakar, learned Counsel for the appellant contended before me that the impugned award in so far as it relates to levy of the penalty is bad in law in as much as the Commissioner for Workmen’s Compensation has not exercised his discretion judicially in levying the penalty and without giving opportunity to the appellant to justify his conduct in not depositing the amount well within time. In support of his contention, he placed strong reliance on the decision of the High Court in N.A.K. Pathan v Julekhabi Pathan. He also placed reliance on the decision of the High Court of Punjab and Haryana at Chandigarh in Rajni Rani and Others v Om Prakask and Another. In the aforesaid decisions it has been clearly held that unless the employer is called upon to show cause for the delayed payment, it is not reasonably possible for the Commissioner to come to the conclusion whether or not there is any justification for the delay and obligation on the part of the Commissioner to hear the party adversely affected is clearly implicit in the provision, for no one can be condemned unheard.
4. In the instant case, I have perused the original records and it is clear that the appellant-employer was not called upon to show cause for the delayed payment and to find out whether there was any justification on his part for not depositing the amount well within the time prescribed. If an opportunity had
been given to the appellant in this regard, perhaps he would have come forward with some justification for the delayed payment. Therefore, in my view, the levy of penalty on the appellant cannot be sustained.
5. Sri S.P. Shankar, learned Counsel for the 1st respondent contended that though the Insurance Company is liable to pay the compensation, it is not liable to pay the penalty which was on account of personal fault of the employer. In support of his contention he placed reliance on the decision of the Supreme Court in Ved Prakash Garg v. Premi Devi . In the said case the Supreme Court has clearly held that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Workmen’s Compensation Act with interest thereon, if any as may be awarded by the Commissioner. But so far as the amount of penalty imposed on the insured employer under contingencies contemplated by Section 4-A(3) is concerned, the Insurance Company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The employer because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate costs thereon if imposed by the Workmen’s Commissioner.
6. Therefore, in view of the above said decision, even if it is held, after due enquiry that the claimant is entitled for penalty under Section 4-A(3) of the Act, the Insurance Company will not be liable to pay the penalty amount and it is the owner of the vehicle who will have to pay such penalty.
7. In the result and for the foregoing reasons, the appeal is allowed. The impugned order passed by the Commissioner for Workmen’s Compensation in so far as it relates to levy of the penalty on the appellant is set aside. The matter is remitted to the Commissioner for Workmen’s Compensation who is directed to find out whether there was any justification on the part of the appellant-employer for not depositing the amount within one month from the date of the accident and thereafter to pass appropriate orders in accordance with law. The participation of the 1st respondent is wholly unnecessary in view of what has been stated earlier. However, notices may be issued to
respondents 2 to 4 and the appellant. The appellant and respondents 2 to 4 shall appear before the Commissioner for Workmen’s Compensation at Tumkur, on 10-3-1998 along with their respective Counsel.