FA/20120/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 201 of 2007 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 NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus HIRALAL DAYALAL GOHIL & 1 - Defendant(s) ========================================================= Appearance : MR HASMUKH THAKKER for Appellant(s) : 1, MR MEHUL S SHAH for Defendant(s) : 1, MR SURESH M SHAH for Defendant(s) : 1, DELETED for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 02/09/2008 ORAL JUDGMENT 1. This appeal is directed against the judgement and order dated 30th January 2006 passed by learned FA/20120/2007 2/4 JUDGMENT Workmen's Compensation Commissioner, Gandhidham-Kutch in W.C. (NF) Application No.5/1999. 2. The original claimant was working as driver with his employer, whose vehicle is insured with the present appellant. On 20.4.1998 he was travelling in a truck of the respondent which met with an accident. The applicant has sustained injuries and therefore he has claimed compensation in the sum of Rs.2,49,567/- by way of aforesaid claim application. The learned Workmen's Compensation Commissioner, Gandhidham-Kutch by order dated 30th January 2006 awarded compensation in the sum of Rs.2,58,336/- along with 12% interest and penalty at the rate of 40%. It is against the said award that the present appeal has been filed. 3. Learned Advocate for the appellant contended that the Insurance company could not appear before the authority due to shifting of office. In this regard this court is of the opinion that this contention is devoid of any merit as no such contention was raised earlier nor the appellant showed that they have sought time, but the authority has not granted time. 4. The next contention raised by the learned Advocate for the appellant is that the Authority has committed an error in awarding penalty at the rate of 40%. Having considered the submissions, this court is of the view that this contention requires to be accepted in view of the decision in the case of Ved FA/20120/2007 3/4 JUDGMENT Prakash Garg Vs. Premi Devi and others, reported in (1997)8 SCC 1, wherein in para 14 it is held as under: “14. ... On the aforesaid interpretation of these two statutory schemes, therefore, the conclusion becomes inevitable that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging tot he 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 4-A(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 he entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmen's Commissioner.” 5. Thus, as regard penalty is concerned, the same FA/20120/2007 4/4 JUDGMENT being amount of penalty imposed on the insured employer the Insurance Company is not liable to pay the same. 6. In the premises aforesaid, the impugned judgement and award dated 30th January 2006 passed by learned Workmen's Compensation Commissioner, Gandhidham-Kutch in W.C. (NF) Application No.5/1999 is modified to the effect that the appellant insurance company is not liable to pay the penalty imposed by the Commissioner. The rest of the award is not disturbed. It will be open for the claimant to recover the said amount of penalty from the employer. If the amount is already withdrawn by the claimant, the same will be recovered by the Insurance Company from the employer. If the amount is lying with the authority the same shall be paid to the Insurance Company. Appeal is allowed to the aforesaid extent. No order as to cost. [K.S. JHAVERI,J.] ar