IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 MFA.No. 128 of 2010() --------------------- WCC.45/2003 of Commissioner for Workmen's Compensation ERNAKULAM .................... APPELLANT(S): 2ND OPP.PARTY. ---------------------------- NATIONAL INSURANCE COMPANY LTD, BRANCH OFFICE, URUMBATH BUILDING, PUMP JUNCTION, ALWAYE REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT & OP.1 ------------------------------- 1. BOSEMON VARGHESE, AGED 23/2003, S/O.VARGHESE, CHATHAN MADATHIL, CHELLI POST PARAPP(VIA) KASARAGODE, 2. MOOSA M.P.PROPIETOR, M/S.SHIFA RUBBERS, PARAKODE, VEMBILLY POST,ERNAKULAM DIST. ADV. SRI.T.H.ABDUL AZEEZ FOR R2 SRI.A.MOHAMED BASHEER (MANGALAPURAM) FOR R1 SRI.T.A.MOHAMMED SANOOJ FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(W.C.C.) No.128 OF 2010 ----------------------------------------------- Dated 21st October, 2011. J U D G M E N T K.M.Joseph, J. Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. The only contention taken is that under the contract of insurance, the appellant was not liable to pay interest in view of the contractual provision. We notice that the Commissioner has ordered the appellant to pay Rs.1,11,570/- with 12% interest from 4.9.2003, the date of receipt of claim. According to the appellant it is illegal. 2. We heard learned counsel for the appellant and learned counsel for the claimant. 3. Learned counsel for the claimant would point out that as found by the Commissioner, the appellant was not ready to settle the claim. Learned counsel for the appellant would point out that upon adjudication of the claim, the appellant immediately deposited the amount and in view of the clause in the contract, the appellant is not liable to pay interest. He would submit that under the contract of insurance, it is for the employer to pay and then claim. In such circumstances of the MFA 128/10 2 case, there is merit in the contention of the appellant, in view of the contract by which the appellant is exempted from paying interest. Under the Workmen's Compensation Act, it is for the employer to make the deposit. The appellant cannot be saddled for payment of interest for non-payment of compensation by the employer. [See decision of Apex Court in New India Assurance Company Ltd. v. Harshadbhai Amrutbhai Modhiya [2006(2) KLT 667 (SC)] for the proposition that the insurer cannot be made liable when there is a clause in the contract which excludes the liability]. Therefore, we allow the appeal and direct that the appellant will not be liable to pay interest as ordered, on the other hand, the employer, viz., the second respondent herein will be liable to pay interest which was ordered to be paid by the appellant. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.