United India Insurancr Com vs Radha Bai & Ans on 30 March, 2010

                                              S.B.CIVIL MISC. APPEAL NO. 10/1997
                                          (United India Insurance vs. Radha Bai & Ors.)
                                                                     Order dt:30/3/2010

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              S.B.CIVIL MISC. APPEAL NO. 10/1997
            (United India Insurance vs. Radha Bai & Ors.)

                   DATE OF ORDER : 30/3/2010

            HON'BLE DR.JUSTICE VINEET KOTHARI


Mr.J.K.Chanda, for the appellant.



1.     Heard learned counsel.

2.     This appeal has been filed by the Insurance Company against

the award passed by Workmen Compensation Commissioner on

4/7/96 in case No. 16/90 (Radha Bai vs. Shyam Lal & Anr.).

3.     Learned counsel for the appellant Mr. J.K.Chanda submits that

death of Ramesh aged 35- husband of the claimant Radha Bai had

taken place on account of excess drinking of liquor in the insured

three wheeler (Taxi) and, therefore, same cannot be said to have taken

place on account of accident, though he submitted that there was no

evidence of any criminal offence having been committed upon the

body of the said Ramesh and the postmortem report only indicates

that   liquor was found in his stomach. Learned counsel for the

appellant presses the present appeal to the extent of imposition of

penalty by the learned Workmen Compensation Commissioner of Rs.

10,000/- in the impugned award. He further submits that amount of

compensation in question has already been deposited                     as per the

requirement of provision relating to appeal               under the Workmen

Compensation Act, 1923.
                                                S.B.CIVIL MISC. APPEAL NO. 10/1997
                                           (United India Insurance vs. Radha Bai & Ors.)
                                                                      Order dt:30/3/2010

                                     2/2

4.       No one appears for the respondent claimant despite service.

5.       Having heard the learned counsel and in view of the legal

position as settled by the Apex Court that Insurance Company under

the insurance contract is not liable to make good the amount of

penalty imposed by the Workmen Compensation Commissioner for

the compensation awarded in favour of the claimant. To this extent,

the present appeal of the Insurance Company deserves to be allowed.

6.       Consequently, this appeal is partly allowed to the extent of

imposition of penalty and recovery of same from the appellant

Insurance Company. Rest of the award is, however, maintained. The

amount of penalty, if already deposited by the Insurance Company,

may be refunded back to the Insurance Company. No order as to

costs.

7.       Copy of this order be sent to the opposite side.



                                                (DR.VINEET KOTHARI), J.

item no. 9
baweja/-