CMA 286/95 - The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. Judgment dt.5.5.09 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. S.B. CIVIL MISC. APPEAL NO.386/1995 against the award dt.8.6.1995 passed by Workmen's Compensation Commissioner, Udaipur in Case No.3/94. Date of order : 5th May, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.K. Mehta for the appellant-Insurance Company. Mr. Dilip Kawadia for the respondent-claimant. None for the respondent-employer despite service. ----- BY THE COURT:- 1. Heard learned counsels. 2. This appeal has been filed by the insurer New India Insurance Co. Ltd. being aggrieved of the award of Workmen's Compensation Commissioner dated 8.6.1995. 3. The workman Laxman Singh while driving tanker No.R.P.J. 4555 from Udaipur to Himmat Nagar died as the said tanker turned turtle and at the time of accident on 20.12.1991 the age of the deceased Laxman Singh was stated to be 30 years. The claim CMA 286/95 - The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. Judgment dt.5.5.09 2/7 under the provisions of Workmen's compensation Act, 1923 was filed by the widow Smt. Mehtab Kanwar and parents of the deceased, Nahar Singh and Smt. Chatur Kanwar mother. The Workmen's Compensation Commissioner awarded a sum of Rs.83,192/- along with the interest at the rate of 6% per annum and 25% penalty amounting to Rs.20,798/- by the impugned award. The said awarded sum has been deposited by the Insurance Company as per the provisions of Section 30 of the Act as stated in memo of appeal amounting to Rs.1,22,136/- on 11.8.1995. 4. Mr. R.K. Mehta, learned counsel appearing for the Insurance Company raised the following three issues before this Court:- (i) That the age of deceased Laxman Singh to be 30 years at the time of death arising out of the accident in the course of employment was not proved to be 30 years and the cross-examination of his father Nahar Singh would reveal that his eldest son was 55 years of age second son being 52 years of age and the third son the deceased Laxman Singh could not be believed to be 30 years of age though in the examination in chief father deposed before the Commissioner that his son deceased Laxman Singh was 30 years of age. CMA 286/95 - The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. Judgment dt.5.5.09 3/7 (ii) That the insurance company was not liable to pay interest as awarded by the Commissioner as it was not part of the insurance contract in question. (iii) That the insurance company was not liable to pay penalty of Rs.20,798/- as imposed by the Commissioner as the said penalty payable under Section 4 A(3) of the Act of 1923 was on account of unjustified delay on the part of employer to pay such compensation and since the liability to pay compensation is fixed on the employer, the respondent No.3, therefore, the insurance company cannot be held liable to pay such penalty. 5. Mr. R.K. Mehta relied upon the judgment of Hon'ble Supreme court in case of Ved Prakash Garg Vs. Premi Devi & Ors.1998 ACJ page 1 and the judgment in case of NIA Vs. Harshdbhai Amruthai Modhiya & Anr. 2006 AIR SCW 2352. On the issue of penalty, he relied upon the decision of the Hon'ble Supreme Court in case of New India Assurance Co. Ltd. Vs. Shiv Singh & Anr. 2000 ACJ 1434 and Kashibhai Rambhai Patel Vs. Shahabhai Somabhai Parmar and others 2000 ACJ 1435 of Delhi High Court and submitted that the penalty is not payable by the insurance company. 6. On the side opposite, Mr. Dilip Kawadia relying upon the CMA 286/95 - The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. Judgment dt.5.5.09 4/7 latest Division Bench judgment of this Court in case of New India Assurance Company Ltd. Vs. Bhoma Ram & Anr. - 2007 R.A.R. 433 (Raj.) submitted that the insurance company was liable to pay compensation as well as interest and penalty also and he relied upon the decision of Hon'ble Supreme Court in case of Kamla Chaturvedi Vs. National Insurance Co. & Ors. MACD 2009 (SC) 4. 7. I have heard learned counsels at length and perused the record of the case. 8. Unfortunately the contract of insurance itself is not available on record as neither of the parties before the Workman Compensation Commissioner, claimant as well as insurance company has brought it before the Commissioner in the course of evidence led by them. However, the judgment of the Hon'ble Supreme Court in the cases cited by the counsels throw considerable light and in fact as far as question of interest is concerned that issue stands concluded by the Division Bench judgment of this Court in New India Assurance Company Ltd. Vs. Bhoma Ram & Anr. (supra) which after discussing the judgment relied upon by the learned counsel for the appellant insurance company in the case of NIA Vs. Harshdbhai Amruthai Modhiya & Anr. 2006 AIR SCW 2352 held in para 7 as under:- CMA 286/95 - The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. Judgment dt.5.5.09 5/7 “7. The decision relied upon by the learned counsel for the petitioner in New India Assurance Co. Ltd. Vs. Harshabhai Amrutbhai Modhiya & Anr., 2006 AIR SCW 2352 also speaks that the insurance company while entertaining into the contract can keep any of the liability out of the contract. The Hon'ble Supreme Court has not held that where the insurance policy is taken by the employer for covering the liability under the Workmen's Compensation Act unless any liability has been specified independently under coverage shall be deemed to have been excluded. The interest for delayed payment ordinarily considered as a part of compensation payable under the Workmen's Compensation Act, whereas the penalty is not. Therefore, the liability undertaken by the insurance company to indemnify the employer in respect of compensation payable under the Workmen's Compensation Act would include ordinarily interest for delayed payment unless specified in the policy. The liability to pay interest on delayed payment of compensation cannot be presumed to be excluded from the insurance contract.” 9. However, as far as the question of penalty is concerned, the consistent view of the Hon'ble Supreme Court as well as this Court appears to be that the insurance company is not liable to pay the amount of penalty imposed by the Workmen's Compensation Commissioner unless the contract of Insurance specifically covers such liability to be paid by the insurance company. Since the insurance contract in question is not before this Court, therefore, no CMA 286/95 - The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. Judgment dt.5.5.09 6/7 such specific coverage of liability of the appellant insurance company to pay the amount of penalty also can be inferred. There is force in the contention of learned counsel for the insurance company that the liability to pay penalty on account of unjustified delay in payment of compensation is fixed on the employer as per the provisions of Section 4 A(3) of the Workmen's Compensation Act, 1953, therefore, such liability cannot be automatically shifted on to the insurance company in absence of any specific contract On the contrary there is no judgment relied upon by the learned counsel for the claimants before this Court where the liability to pay penalty has also been held to be foisted upon the insurance company. 10. As far as the question of proof of age is concerned, on the basis of evidence before the commissioner, the Commissioner as a matter of fact has found that the age of the deceased Laxman Singh was 30 years. Mere averment in the cross-examination of father of the deceased, Nahar Singh that his elder sons were of aged 55 and 52 years respectively does not disprove the age of deceased Laxman Singh to be 30 years particularly when in examination in chief the father Nahar Singh has specifically stated his age to be 30 years. 11. Moreover this being a finding of fact, which cannot be said to be perverse ipso facto this Court is of the opinion that this question cannot be agitated as substantial question of law within the CMA 286/95 - The New India Insurance Co. Ltd. Vs. Nahar Singh & Ors. Judgment dt.5.5.09 7/7 ambit and scope of Section 30 of the Act of 1923 as an appeal to this Court lies only on substantial question of law. 12. Thus, this Court is of the opinion that the appellant insurance company can be granted relief in present appeal only to the extent of amount of penalty of Rs.20,798/- sought to be imposed upon the appellant insurance company whereas the appellant insurance company are bound in law to pay the amount of compensation as well as interest as awarded by the Commissioner in view of the binding precedent of Division Bench judgment of this Court in New India Assurance Company Ltd. Vs. Bhoma Ram & Anr. (Supra). 13. Consequently, this appeal is partly allowed and the amount of penalty of Rs.20,798/- imposed by the Workmen's Compensation Commissioner is held to be not payable by the appellant insurance company but the same would be payable by the employer himself. The remaining part of award except to the extent of penalty is maintained. The appellant is free to recover the said amount of penalty from the employer respondent No.3. [ DR. VINEET KOTHARI ], J. itemNo.1 babulal