IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (WCA) No. 296/2004 Decided on: 17.7.2008 Oriental Insurance Company Limited …Appellant. Versus Smt. Panchu Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Ashwani K. Sharma, Advocate. For the respondents : Mr. Nishant Ravi, Advocate for respondent No.1. Mr. Ashwani Pathak, Advocate for respondent No.2. Rajiv Sharma, J. (oral) The present FAO (WCA) has been filed against the award dated 26.3.2004 passed by the learned Commissioner, Arki, District Solan, H.P. in case No. 3/2002. The brief facts necessary for the disposal of this FAO are that the deceased Prakash Chand died during the course of his employment with respondent No.3 on 18.6.2002 near Nigulsari (Bhawanagar). The FIR was registered and the post-mortem of the deceased-workman was conducted by the Medical Officer, at Bhawanagar Hospital. The deceased was 20 years old. As per the claim petition, he was getting Rs. 6,000/- 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 per month as a salary from respondent No.3. In claim petition, a sum of Rs. 8 lakhs was claimed. The truck in question bearing No.HP-11-2165 was insured with the appellant i.e. Oriental Insurance Company. The learned Commissioner had framed the following issues: 1. Whether the applicant is workman within the meaning of the Act? OPP 2. Whether the accident arose out of or in course of applicant’s employment? OPP 3. Whether the amount of compensation claimed is due or any part of that amount? OPP 4. Whether the opposite party is liable to pay such compensation as is due? OPP 5. Relief. The learned Commissioner awarded a sum of Rs. 4,45,420/- in favour of respondents No.1 and 2. Sh. Bali Ram, claimant No.2 died during the pendency of this appeal and his legal heir Sh. Hem Raj was impleaded as respondent No.2 on 26.7.2005. This FAO has been filed against the award dated 26.3.2004. The FAO was admitted on 16.8.2004 on the following substantial questions of law: 1. Whether the order of the Commissioner under Workmen’s Compensation Act, Arki is legally justified when the insured of the vehicle Smt. Anjana Mahajan has not stepped into the witness box to prove that deceased Prakash Chand was her employee as Conductor in the ill-fated truck 2. Whether the Commissioner below has gravely erred in awarding the penalty and the amount of compensation against the appellant-Insurance Company. Mr. Ashwani Sharma, Advocate has strenuously argued that the claimants have failed to prove that deceased Prakash Chand was employed as a Conductor by respondent No.3 in the ill-fated truck. He 3 also contended that the Insurance Company was not liable to pay any compensation. He further contended that the Commissioner could not order the appellants to pay the interest as well as the penalty as per the operative portion of the award. Mr. Nishant Ravi and Mr. Ashwani Pathak, Advocates appearing on behalf of the respondents have supported the award dated 26.3.2004. I have heard the learned counsel for the parties and have also perused the record carefully. The accident in question has taken place on 18th June, 2002. The deceased was employed as workman by respondent No.3 with truck No. HP-11-2165. Respondent No.3 has filed reply to the claim petition. She has admitted that deceased was working with the vehicle in question. The appellant had also filed reply to the claim petition. It has been admitted by the appellant that truck No.HP-11-2165 was insured vide Policy No. 2003/160 issued by B.O. Bilaspur. The policy was issued in the name of respondent No.3 Smt. Anjana Mahajan and the same was valid with effect from 20.4.2002 to 19.4.2003, Respondent No.1 has appeared as PW-1. She has produced copy of FIR dated 18.6.2002 marked as PW-1/A alongwith post-mortem report. She has deposed that the truck in question was insured with the appellant. According to her, the deceased was getting a sum of Rs. 6,000/- per month and was also getting allowance amounting to Rs. 50/- per day. She has deposed that the age of the deceased was 21 years. She has further deposed that she was dependent upon the income of the deceased. Respondent No.3 had not stepped into the witness box. Mr. Ashwani Sharma submitted that it was necessary for the employer to appear before the learned Commissioner to establish that the workman was employed by her. Respondent No.3 in fact has filed the reply to the claim petition and 4 has admitted categorically that the workman was employed with the truck owned by her. In view of this categorical admission of respondent No.3 in her reply, it was not necessary for her to appear as a witness. The submission of Mr. Ashwani Sharma to this effect is rejected. The finding recorded by the Commissioner that the deceased was a workman employed by respondent No.3 and has died during his employment, is upheld. Now, the Court has to consider whether the learned Commissioner could direct to pay 30% of the assessed amount as penalty if the appellant failed to deposit the amount of compensation within 30 days. This part of the award is without jurisdiction. The amount has to be awarded strictly as per the provisions of the Workmen’s Compensation Act, 1923. Consequently, the appeal is partly allowed. The award dated 26.3.2004 is upheld to the extent whereby a sum of Rs. 4,45,420/- has been awarded. However, the award whereby the direction has been given that in case the compensation amount along with interest is not deposited within 30 days by the appellant, it was to pay 30% of the assessed amount as penalty is set aside. There shall be no order as to costs. July 17, 2008 (Rajiv Sharma ), J. *awasthi*