FA/235720/2006 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2357 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE ORIENTAL INSURANCE COMPANYLTD. - Appellant(s) Versus NARMADABEN W/O. KANIYALAL CHHOTUBHAI VASAVA & 3 - Defendant(s) ========================================================= Appearance : MR KASHYAP R JOSHI for Appellant(s) : 1, RULE SERVED for Defendant(s) : 1 - 4. MR JOY MATHEW for Defendant(s) : 1, 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/08/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and award dated 05.02.2006 passed by the learned Commissioner under the Workmen's FA/235720/2006 2/3 JUDGMENT Compensation Act, 1923, Bhuj – Kutch in W.C. (F) Application No.5 of 2001 whereby, the said application was allowed and the appellant – Insurance Company was held liable to pay an amount of Rs.10,845.50 towards penalty being 5% of the total compensation of Rs.2,16,910/- . 2.0 The facts in brief are that deceased – Kanaiyalal Chotubhai Vasava was working as a Mason with respondent no. 4 – Company. On 12.05.2000 while the deceased was doing some work under a contract of respondent no. 5, the slab of the building all of a sudden fell down. As a result thereof, about 7 – 8 workers sustained severe bodily injuries and the deceased and one other person died on the spot. 2.1 As a result thereof, the legal heirs of the deceased filed an application before the Court below claiming compensation and other benefits. The Court below, after appreciating the evidence on record, allowed the said application and issued directions as stated in the earlier part of this judgment. Hence, this appeal. 3. Heard learned counsel for the respective parties. The issue involved in this appeal is squarely covered by a decision of the Apex Court in the case of New India Assurance Co. Ltd. v. Shiv Singh & Anr. reported in 2000 A.C.J. 1434 wherein, it has been held that u/s. 4-A(3)(b) of the Workmen's Compensation Act, 1923 r/w. Section 147 of the Motor Vehicles Act, an Insurance Company could not be held liable to pay penalty. Looking to the facts of the case, the principle laid down in the aforesaid decision shall apply in the present case and consequently, the appellant – Insurance Company cannot be held liable to pay the amount of penalty. Hence, the impugned award is required to be FA/235720/2006 3/3 JUDGMENT modified accordingly. 4. In the result, the appeal is partly allowed. The impugned award passed by the Court below is quashed and set aside only qua the direction imposing penalty on the appellant – Insurance Company. The rest of the impugned award stands confirmed on the same terms. It shall be open to the original claimant to recover the amount of penalty from the employer concerned. If the amount is already withdrawn, the appellant – Insurance shall recover the same from the employer and not the original claimants. The appeal stands disposed of accordingly. No order as to costs. [K. S. JHAVERI, J.] Pravin/*