MFA 22/2001 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) 1. This appeal by the Insurance Company is directed against the awa rd dated 24.4.2000 passed by the learned Commissioner, Workmen’s Compensation, D hubri in WC Case No. 4/99 awarding compensation of Rs. 2,13,570/- to the claiman t/respondent for the death of her husband who was a workman under the respondent No. 2. 2. By the said order interest at the rate of 12% per annum from the date of the accident till the date of the order on the aforesaid amount of Rs. 2,13,570/- was also directed to be paid with a further direction to pay the enti re amount of Rs. 2,52,013/- (Rs. 2,13,570/- + Rs. 38,443/-) within a month from the date of passing of the said order. A further direction for payment of intere st at the rate of 12% per annum on the said amount was also issued, in default o f making payment of the aforesaid amount. There being a contract of insurance be tween the appellant Insurance Company and the respondent No. 2, the employer, th e said amount was directed to be paid by the appellant. 3. The appellant in the present appeal has also challenged the subs equent order dated 2.8.2000 passed by the learned Commissioner awarding penalty of Rs. 1,06,785 being 50% of the amount of compensation, on the ground that the appellant has failed to deposit the said amount within the time allowed. 4. The respondent No. 4 Smt. Latika Pathak filed an application on 25.1.1999 under the provisions of the Workmen’s Compensation Act, 1923 (now the Employees’ Compensation Act) (in short the Act) claiming compensation contending inter alia that her husband Deepak Pathak, who was a handyman of the vehicle be aring registration No. AMG-629 and belonging to respondent No. 2, received sever e injuries arising out of and in course of his employment on 28.10.1998, who eve ntually died on 8.11.1998. The said application was registered and numbered as W C Case No. 4/99 before the Commissioner, Workmen’s Compensation, Dhubri. 5. The appellant Insurance Company who was one of the parties in th e suit proceeding on receipt of the notice filed the written objection denying t he claim of the claimant. A separate written statement was also filed by the emp loyer. 6. The claimant in support of the claim examined herself who has be en cross examined by the Insurance Company. No witness, however, has been examin ed by the opposite parties including the present appellant. 7. The learned Commissioner upon appreciation of the evidences on r ecord passed the award as aforesaid. Hence the present appeal. 8. Vide order dated 8.2.2088 the appeal has been admitted for heari ng on the following substantial questions of law: - i. Whether the Commissioner of Workmen’s Compensation, was justified in awa rding interest on the compensation awarded from the date of accident and additio nal interest of 12% on failure to comply with the award? ii. Whether the Commissioner of Workmen’s Compensation, was justified in awa rding a penalty amounting to 50% of the award, directing the appellant-insurance company to pay the same? 9. I have heard Mr. S Dutta, learned counsel for the appellant. Non e appears for the respondents. 10. Referring to the impugned order passed by the learned Commission er, Workmen’s Compensation, it has been submitted by the learned counsel for the appellant that the award of interest under Section 4A(3) of the Act being penal in nature, the learned Commissioner ought not to have awarded interest from the date of the accident till the date of realization, as the claimant, if at all, is entitled to interest from expiry of one month from the date of adjudication o nly. The learned counsel, therefore, submits that the interest as awarded by the learned Commissioner needs to be set aside. 11. Relating to the second substantial questions of law formulated i t has been submitted by Mr. Dutta, learned counsel for the appellant is that the Insurance Company cannot be saddled with the responsibility of payment of penal ty under Section 4A(3)(b) of the Act as has been done in the instant case. Refer ring to the records it has also been submitted by Mr. Dutta that it is very doub tful whether the notice prior to passing of the order dated 2.8.2000 has ever be en served on the Insurance Company, which admittedly has not been issued to the employer. The learned counsel for the appellant, therefore, submits that the ord er dated 2.8.2000 in so far as it relates to awarding of penalty and directing t he Insurance Company to satisfy the same be set aside. 12. I have considered the submissions of the learned counsel for the appellant. I have also perused the impugned award apart from the evidences on r ecord. 13. In the instant case the factum of accident, the employment, the death of the workman in an accident arising out of and in course of the employme nt, involvement of the vehicle belong to the respondent No. 2 in such accident, the contract of insurance between the appellant and the respondent No. 2 in resp ect of the vehicle involved in the accident as well as the principal amount of c ompensation awarded are not in dispute and need not be gone into in this appeal. 14. The questions that arise for decision in this present appeal are : - (i) relating to the interest awarded under Section 4A(3)(a) of the Act and; (ii) the penalty as awarded under Section 4A(3)(b) of the said Act. 15. It appears from the impugned order dated 24.4.2000 that the lear ned Commissioner awarded a sum of Rs. 2,13,570/- as compensation. The learned Co mmissioner has also directed payment of interest at the rate of 12% per annum fr om the date of accident till the date of the order and allowed 30 days time to s atisfy the award. A further direction has also been issued directing that in the event of failure to pay the amount within the aforesaid period the amount will carry further interest at the rate of 12% per annum till the date of realization . The effect of the said order is that the interest of 12% under Section 4A(3)(a ) of the Act has been awarded from the date of the accident till the date of rea lization. 16. The Apex Court in Oriental Insurance Company vs. Mohd. Nasir and another, reported in 2009(6) SCC 280, has held that there cannot be any doubt w hatsoever that the interest payable under Section 4A(3)(a) would be from the dat e of the default and not from the date of the award of compensation. It has, how ever, been held in the said case that the Court can in exercise of its discretio n award reasonable interest from the date of filing the claim application the ti ll the date of the order. 17. As noticed above, the learned Commissioner has awarded interest at the rate of 12% per annum under Section 4A(3)(a) of the Act from the date of the accident till the date of realisation. The Commissioner, under the said prov ision of law, can pass the order relating to the interest from the date of the d efault i.e. w.e.f. expiry of 30 days from the date of the order till the date of realisation. However, as held by the Apex Court, the Court can in exercise of i ts discretion award reasonable interest from the date of filing the claim petiti on. 18. In the instant case, keeping in view the facts and circumstances of the case and also the fact that the respondent No. 4 has been deprived from the enjoyment of the amount, 9% interest per annum from the date of filing the c laim application till the date of passing of the award can be awarded. It appear s that the appellant Insurance Company has already deposited the entire amount o f compensation of Rs. 2,53,013/- on 30.8.2000. By virtue of this order the respo ndent No. 4 may be entitled to a lesser amount towards the interest. However, si nce the amount has already been deposited, which has been released to the respon dent No. 4, I am not inclined to interfere with the amount awarded which has alr eady been paid to the respondent No. 4. 19. Relating to the second substantial question of law it appears fr om the order impugned dated 2.8.2000 that the penalty has been awarded against t he appellant. 20. The records of the proceeding reveal that the said order has bee n passed without issuing any notice to the employer. That apart it is also doubt ful whether the notice on the Insurance Company has been served as the A/D card which is available on record does not bear the official seal except the initial of some person, wherefrom it cannot conclusively be held that the said notice ha s been served on the appellant. The order dated 2.8.2000 further reveals that th e same was passed ex parte. 21. In view of the above, the order date 2.8.2000 is set aside. 22. The matter is remitted to the learned Commissioner, Workmen’s Co mpensation, Dhubri for deciding the matter relating to the liability of the appe llant in respect of the penalty as provided under Section 4A(3)(b) of the Act. I t is, however, made clear that award of compensation of Rs. 2,53,013/- has not b een interfered with. 23. The appeal is partly allowed. No cost. 24. The Registry is directed to send down the records forthwith.