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FA/139319/1982 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1393 of 1982
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UNITED
INDIA INSURANCE CO LTD - Appellant(s)
Versus
BAI
JADI SAGARAM & 13 - Defendant(s)
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Appearance
:
MR
VIBHUTI NANAVATI for
Appellant(s) : 1,
None for Defendant(s) : 1 - 3.
NOTICE SERVED
for Defendant(s) : 4 -
14.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/08/2008
ORAL
ORDER
1. By
way of this appeal, the present appellant-original opponent
no.12-insurance company has challenged the order dated 23.11.81
passed by the Commissioner under the Workman Compensation, Junagadh
in Workman Compensation Application No. 25 of 1978 whereby the
Commissioner allowed the claim and awarded Rs. 25,200/- which
includes 40% penalty.
2. The
present opponent nos.1 to 3 -original applicants filed claim petition
vide Workman Compensation application no. 25 of 1978 under the
Workman Compensation Act against the present appellant and the
present opponent nos. 4 to 14 to tune of Rs. 20000/- in respect of
the accident which occurred on 02.06.78 while the deceased Bai Kunvar
was extracting sugar cane juice in the sugar factory of the original
opponent no.1. At that time, the deceased got trapped in the machine
and she sustained severe injuries. She was operated upon but on
18.06.78, she succumbed to her injuries. The claimants, being the
legal heirs and representatives of the deceased, thereafter, filed
the aforesaid claim petition. After hearing the parties, the
authority passed the aforesaid award.
3. Mr.
Nanavati, 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.
Nanavati 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 Application No. 25 of 1978 is quashed and set aside qua
liability penalty payable by the insurance company. The
amount of penalty of Rs. 7200/-, if deposited, by the insurance
company shall be refunded to the insurance company. However, if the
amount is withdrawn by the original claimants, the same shall not be
recovered from the original claimants. It will be open for the
insurance company to recover the amount of penalty from the owner and
if the amount is not paid to the claimants it will be open for the
claimants to recover the same from the owner. The award of the
Commissioner is modified accordingly. No order as to costs.
(K.S.
JHAVERI, J.)
Divya//
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