JUDGMENT
Nishita Mhatre, J.
1. The First appeal challenges the award of Commissioner for Workmen’s Compensation to the extent that it grants compensation of only an amount of Rs. 73668/- while denying the claim for penalty and interest. The compensation has been granted on the basis that the deceased workman had completed 40 years of age and not 35 years as claimed by the applicants before the Commissioner for Workmen’s Compensation.
2. The deceased, “who was the husband of Appellant No. 1 and the father of Appellant No. 2, died in a motor vehicle accident on 14.7.1984. He was driving the truck owned by Respondent No. 1 which was insured with Respondent No. 2. According to the appellants, the age of the deceased at the time of the accident was 35 years and his monthly wages were Rs. 1000/-. After the accident, the appellants claimed compensation from Respondent No. 1 who did not bother to pay any amount to them. Neither did Respondent No. 2 as the insurance company pay any amount to the deceased. Therefore, the appellants filed an application for compensation before the Commissioner for Workmen’s Compensation claiming an amount of 78824/- alongwith interest and penalty of 50% of the compensation. No written statement was filed by respondent No. 1. Respondent No. 2, the insurance company, filed a written statement denying everything that was stated in the application. Respondent No. 2 also stated in their written statement that they were not aware as to whether the lorry in question was owned by opponent No. 1 i.e., Respondent No. 1 herein. Obviously, while filing the written statement not much thought has gone into the same.
3. Evidence was led by the appellants. Appellant No. 1 examined herself and has deposed that her husband, the deceased, was 35 years of age at the time of the accident. She stated that the deceased worked with Respondent No. 1 for 15 to 20 years prior to the accident and that he was paid Rs. 1000/- as wages by Respondent No. 1.
4. The Commissioner on the basis of the evidence on record has held that the age of the deceased was 35 years since this was the age mentioned in the accident report which was filed at Exhibit C5 alongwith the list. The Commissioner also came to the conclusion that the wages payable to the workman was proved to be Rs. 1000/- per month and, therefore, taking into consideration the relevant factor of Rs. 184.17 ps. awarded the compensation of Rs. 73668/-. There is no discussion whatsoever as to why the Commissioner has refused to grant penalty and interest on the compensation. It is this award that is challenged by the Appellants.
5. It is evident from the award that the Commissioner has not correctly recorded the age of the deceased. I have satisfied myself from the Record and Proceeding, which was called for in this Court, that the report of the accident of the workman, which document was proved in Court, shows that the age of the workman is 35 years. This document has been filed by the insurance corporation alongwith the total claim for compensation. Therefore, clearly the Commissioner has erred in recording the age of the workman in the accident report as 45 years. Further, the Commissioner has erred in calculating the compensation based on the approximate age of the deceased being 40 years. There is no reason as to why this was taken as the appropriate age except for the fact that appellant No. 1 who was illiterate, has deposed that the deceased was in service for 15 to 20 years. The period of 15 of 20 years could not necessarily mean that the deceased was employed at the age of 20 years. The Commissioner has presumed such a fact and has based his calculations on the approximate age of the deceased being 40 years. This in my view, ought not have been done when there was documentary evidence indicating the age of the deceased was 35 years at the time of his death.
6. Furthermore, there is no justification for the Commissioner not awarding any interest on the compensation. The compensation fell due as stipulated under Section 4A of the Act. Not having paid the amount, the interest must be awarded. there is no explanation whatsoever as to why even the admitted amount was not paid. Nor is there any explanation for the delay in making payment. Neither of the respondents thought it fit to deposit the amount once the application was filed before the Commissioner. This being the case, I see no reason why interest should not be awarded. Mr. Vidyarthi, learned Advocate for the Respondent-insurance company relied on the judgment in the case of P.J. Narayan v. Union of India and Ors., to submit that the insurance company is not liable to pay the interest. However, this judgment of the Apex Court indicates that if there was a clause in the insurance policy that the insurance company would not make on the liability for interest, it is not liable to pay the interest. The judgment is not of any assistance to Respondent No. 2 as in the present case, there is nothing on record to show that such a clause was incorporated in the insurance polity. Therefore, interest must and shall be paid by Respondent Nos. 1 and 2 jointly and severally.
7. With respect to penalty also, the Commissioner has given no reason as to why the penalty has not been awarded. Under Section 4A of the Act, 50% of the compensation payable can be awarded as penalty if the employer commits a default in paying the compensation within a month from the date it fell due. The compensation falls due immediately when the accident occurs. Undisputedly, no amount has been paid to the appellants within one month of the accident or till the application was disposed of by the Commissioner. In such circumstances, penalty must be awarded. However, penalty cannot be made payable by the insurance company as it is trite law that the insurance company is not liable to pay penalty on the compensation. Therefore, Respondent No. 1 will be liable to pay penalty of 50% of the amount of compensation.
8. Appeal is allowed. The compensation is enhanced to Rs. 78,824/- alongwith interest @ 6% per annum from the date of the accident till payment by the respondents jointly and severally. Penalty of 50% shall be paid to the appellants by Respondent No. 1. All the amount shall be paid to Appellant No. 1 since Appellant No. 2 has become a major during the pendency of the application before the Commissioner. The amounts shall be paid to her by Respondent Nos. 1 and 2 within a period of eight weeks from today.
9. Appeal disposed of accordingly.
10. The amounts shall be deposited within eight weeks before the Commissioner for Workmen’s Compensation. The Appellant No. 1 may withdraw the same immediately.