FA/4512/2006 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4512 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 COMPANY LIMITED Versus BHACHIBAI OSMAN JAT & ANOTHER ========================================================= Appearance : MR KV GADHIA for Appellant. None appears for respondents though served. + ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 26/02/2008 ORAL JUDGMENT This is an appeal preferred by the New India FA/4512/2006 2/3 JUDGMENT Assurance Company Limited under section 30 of the Workmen's Compensation Act against the judgment and award dated 30th January 2006 passed by the Workmen's Compensation Commissioner, Gandhidham-Kutch in W.C. [N.F] Case No. 12 of 1998. Osman Sumar Jat, who was working as a driver with respondent No. 5 herein, met with an accident on 09.05.1997. He, therefore filed the aforesaid case claiming compensation. During the pendency of the case, the workman Osman Sumar Jat died on 29.01.2002 and his heirs and legal representatives were brought on record. After hearing the parties, the learned Commissioner passed an award on 30.1.2006 directing the appellant Insurance Company to deposit a sum of Rs.1,62,672/- with 12% interest, 40% penalty, costs of Rs.500/- as well as Rs.600/- towards stamp fees. The opponent No.5 was directed to pay 10% penalty. At the hearing of the present appeal, Mr. K.V. Ghadia, learned advocate for the appellant submitted that the appellant is not challenging the entire award, but is challenging only the direction of the learned Commissioner directing it to pay 40% penalty. He further submitted that the Apex Court in the judgment in the case of KASHIBHAI RAMBHAI PATEL vs. SHAHBHAI SOMABHAI PARMAR AND OTHERS reported in [2000 (85) FLR 373 has held that so far as the question of penalty is concerned, the Insurance Company would not be liable under the provisions of the Workmen's Compensation Act. In view of the ratio laid down by the Apex Court in the aforesaid judgment, learned advocate for the appellant submitted that penalty could not have been imposed on the appellant FA/4512/2006 3/3 JUDGMENT Insurance Company. In the light of the aforesaid facts and circumstances and considering the ratio laid down by the Apex Court in the aforesaid judgment, the learned Commissioner could not have imposed penalty on the present appellant Insurance Company. The appeal, therefore, requires to be partly allowed. Hence the following order: O R D E R The appeal is partly allowed. The penalty to the extent of 40% imposed by the learned Commissioner on the appellant Insurance Company is quashed and set aside. Rest of the award is not disturbed. Since the amount deposited by the appellant Insurance Company is already disbursed, no further order is required to be passed in this regard. The award be modified accordingly. No order as to costs. mathew [H.B.ANTANI, J.]