FA/1271/1987 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1271 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= UNITED INDIA INSURANCE CO. LTD - Appellant(s) Versus FATEHMOHMED KALUBHAI & 2 - Defendant(s) ========================================================= Appearance : MR PV NANAVATI for Appellant(s) : 1, UNSERVED-EXPIRED (R) for Defendant(s) : 1, RULE SERVED for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 9/05/2008 C.A.V. JUDGMENT 1. Present appeal under sec.30 of the Workmen's Compensation Act, 1923 (“the Act” for short) is filed by the appellant – original opponent No.2 – United India FA/1271/1987 2/4 JUDGMENT Insurance Co.Ltd. challenging the Judgement and Award dtd.11/8/1986 passed by the learned Commissioner under Act, Civil Judge (S.D.), Surendranagar in Workmen's Compensation Case No.54 of 1985, in so far as directing the appellant – Insurance Company to pay penalty of Rs.6,293=78 ps. to the original claimants. 2. As the controversy raised in the present appeal is in narrow compass, this Court is not narrating the facts in detail. 3. Mr.Nanavati, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned Commissioner has materially erred in directing the appellant - Insurance Company to pay penalty. It is submitted that as held by the Hon'ble Supreme Court in the case of Ved Prakash Garg Vs. Premi Devi and others, reported in AIR 1997 S.C. 3854, Insurance Company cannot be held liable to pay penalty as provided under sec.4-A(3)(b) of the Act. He has submitted that the learned Commissioner and trial court has committed an error in directing the appellant – Insurance Company to pay penalty. No other submissions have FA/1271/1987 3/4 JUDGMENT been made by the learned advocate appearing on behalf of the appellant. 4. The respondent No.1 reported to have expired and though served nobody appears on behalf of the respondent Nos.2 and 3 – original claimants. 5. Considering the decision of the Hon'ble Supreme Court in the case of Ved Prakash Garg (supra), Insurance Company cannot be saddled with the liability to pay penalty as provided under sec.4-A(3)(b) of the Act. Under the circumstances, the impugned Judgement and Award dtd.11/8/1986 is required to be modified to the aforesaid extent. 6. For the reasons stated above, the appeal succeeds in part. The impugned Judgement and Award dtd.11/8/1986 passed by the learned Commissioner under Act, Civil Judge (S.D.), Surendranagar in Workmen's Compensation Case No.54 of 1985 in so far as directing the appellant Insurance Company to pay penalty of Rs.6,293=78 ps., is hereby quashed and set aside. Consequently, the appellant – Insurance Company would FA/1271/1987 4/4 JUDGMENT be entitled to get back/recover the differential amount of penalty already deposited. If any excess amount is deposited by the appellant before the learned Commissioner, in view of the final order passed in this appeal, the said amount be refunded by the learned Commissioner to the appellant on making a request. The appeal is allowed to the aforesaid extent only. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik