IN THE HIGH COURI OF CHHAHISGARH.BILASPUR \J[ ,^/' MA(CYNo. ^-Q \ /2Q09 1.^-^ itf^^ ^ ^^^^^ '-"Sia,;St Appellants R&cnnnrlont NQ.I ^'SotdhemWei&hihglnclustriesPvtLtd. Thmdnh itfi nirecior Sri. V.Viswanadhan Ashiyana, vasundnara Nagar (soutn) G.E. Road.Bhilai-a [.g^-ii..^ G.E.'Road,Bhilai-3 ..•••^'^Ci'^ " Dist: Durg (Chhattisgarh) ^«^^--Versus ResDQndentNo.'l Claimant Respondeftt. No.2 ^f(espo"dent;Mo.2 R^s'pottdent No.3 Phoolmatia Bai, Wd/oLatePrefflda&Vtehwakar.'sa Village: Umedibhata PO:. Bhilai Bazar Disf: Korba <^. Deputy_GeneFal^Manager SouthEasteFn.CoalfelEi&Ltd. Gevra Projecf Dist: Korba /CommissioneF UndeFthe-Workmen'-sCompensationAct Korba (CG) Apseal under Section^O ofthe Workmen's Compension Act, 1923 ^••'S.^-.^^t ^y- ^' "^-^•If"' ''•''''^W-ssys"^' (Claim value Rs.4;50,440) ^&o ovf - _S-T^.- ijGH COURT OF CHH ws-?vrs.3 ^^rwonM.j .fC'i Aspe!!ant /]"^ ^ -.^ >^ ^ ^ ^ ^. f A, ^ \ ^i'SCSpU) lUCltt 'Mu. tl Southern Weighing industries Pvt. Ltd. Dls! Dwg (CG) \/s R^soond^nts Cjaimant Phoo!matia Bai and others ?(l^ 1 i= it Sd/- G. Minhaju Judge y? ^S'•S/-"%3" ^ ..:"^3a S ""SB^s ~~f§3 ''d''^'.^^^' .'•>-..- ';; ^\ HIGH COURT OF CHHATTBGARH AT BUJ^PUR M.A.(CtNo^090F2(M)9 Appellant (Respondent No.1) Respondents Claimant Vs Southern Weighing Induatries Pvfc Ltd. Di^t. Durg (CG) Phoolmatia Bai and others Present: Mr. R. Mukhopadhyay,counsel for ttie appeltant. Mr. Abhijit Sarkar, counsel for respondent No.1. Mr. Sudhir Bajpai, counsel for respondent hto.2. ORDER (Passed on } 2—Augiwt,2011) 1. This appeal has been ffled by the appetlant/emptoyer under Section 30 of the Workmen's Compensation A(d, 1923 (in short "the Act, 1923'') against the order dated 17th December, 2008 passed by the Commissioner, Wwtonen's Compensation Act, Labour Court, Korba (CG) (in short "the CommissioneO in Case No.51/WCA/08(F), imposing a penalty of Rs.25,000/- on the appellant/employer. 2. Brief facts of the case are that labour Vishwakarma Das Mahant was employed under the eontractor M/s Southem Weighii^i Industrles Pvt. Ltd. of SECL. Gevra. He died on 17.5JOTO durtng the couree of employment. Rs.4,50,440/- was cteposfted by the SECL, Gewa as compensatlon before the CommisshMier. 3. Heard learned wunsel for Ure respective partles, perused the LCR as also the Impugned order. 4. Leamed counsel for the appeltant has contended that <m the tasis of material on record, especially the certtfied copy of e stalemert of Vlnod Kumar (Annexure A/2) it is ctear that on 17.5.2008 whai the deceased employee Vlshwakarma Das Mahant after compleUr^ his work had left the site of the appellant/employer at 5 pm and was waiting for his eolteagues to retum home, a water tanker,owned by respondent No.^SECL, whfeh was belng dnven rashly and negllgently by the driver, knocked down Vishwakarma Das Mahant, as a result of whfch he died on ftie spot. As such, dearth of Vishwakarma Das was not as a result of accident artsing out of and in the course of his employment and therefore, the Commi^toner .<<:ss:*as%!>X ^'""....^ .-U'I';!'^,.'' i/^"^ "'%, V S '" . t l^ ^ ° !S 'SSSS»S!&, 8 S 'VSSSA § ''^3 M B S s^r il; !( had no jurisdictfon to pass the impugned orcter. He has ateo contended that no nottoe was served on the appettant and fte moment a show cause ncrtice was served, the appenant/employer appeared before the Commissloner and fifed reply to the show cause notice. But despite all tftis, a penalty of RsJ25,000/- has been imposed, which is iltegal, arbitrary and in ewess of the aidwrty (rf the Commissioner as a maximum fine of Rs.5,000/- can only be imposed under Sectton 18A ofthe Act, 1923. 5. He has further contended that as Uie accident had not occurred during the course of employment of the deceased, but at a Ume when he was retuming to his home after finlshing his work, therefore, respondent No.2 ts only responsible to pay compensation, and not the appellant/employer. 6. On the COTtrary. leamed counsel for respondents have supported the impugnal order. 7. There 1s no dispute that the deceased was an emptoyee of the appellant. The appellant was given a contract for Instetlatlon aiKl maintenance of weighbridge by resporelent No.2/SECL. The accident had occurred on 17.5.^08 at about 5 pm. As per certifled copy of statement of Vinod Kumar (Annexure A/2), who was also woridng as an employee of the appellant at the relevant Ume, it te •clear that when after finlshing his work, the cleceased was waiUng for his colleagues for going back to home, he was dashed by a water tanker of SECL, which was being rashly and n^ljgently dmen by the driver and as a result of whtoh, \flshwakarma Das Mahant died on the spot. 8. From perusal of the impugned order dated 17.12.20C®.it Is clear that the amount of Rs.4,50.440/- was deposited by the SECL as compensation before the Commissioner and by the Impugned oreter the said amount was disbursed amor^ the dependante of the deceased. In the impugned order, in para - 6, after observing that as the appellant/employer nelther informed the Commtesioner In respwt of the accident resulting in (teath of employee Vishwakarma Das Mahant, nor did deposit the amount of comper^rtiw wthjnttie lEi llt 1!, i.'i.. stipulated time, a penalty of Rs.25,030/- has been imposed upon the appellant/employer. 9. The appeal has been admitted on the following substenUsri questions of law: (O Whether the Commissfoner, Workmen Compensation has juristfiction to pass an award under Workmen Compensirtlon Act, 1923 m relation to an accktent InvoMng a motor whtele? (ii) Whether the Commissioner is justified in fastenlng the liayiity of payment of penalty on the appeBant-Company in view of the fact that the award of compensation has been deposited bythe principal employer respondent No.2,SECL7 lO.From the documents avaBable on reconl. ft is evklent that the principal employer - SECL - of the deceased Vishwakarma Qas Mahant had deposited compensation of Rs.4,a),440/- on 23.6.2008 and the accident resulting in death of Vishwakamia Das had occurred on 17.5.M08. On the basis of material on record. it is ctear that the accident had not occurred during the couree of employment of the deceased under the appeltant, but had occurred when the employee after compl^ing his work was waBing for hte colleagues for going back to home. In these circumstances, when the employee did not die as a result of an accident arising out of and in the course of hfs employment under the app^lanVem^oyw, nor on the site of the appellant, therefore, the appellant/emplo^r was under no obligation to inform about the accktent resultlr^ in death of the employee to the Commissfoner under Sectton 10B ef the Act, 1923, which is made punishable up to a fine of Rs.5,000/- under Section 18A of the Act, 1923. 11.As the accident was caused on account of radi and negligent driving of the driver of the water tanker owned by respondert No.2/SECL,therefore. only respondent No.2/SECL was liaMe to pay compensation and tt has deposited the compensation wlth the Commissioner on 23.6.2008. As such. imposlUon of penalty of Rs.25,OX}/- on the appellanVemployer is unwarranted and UaMe to be set aside. -f^- ^\ 12. So far as ttie Jurisdiction of the Commissioner to pass the award is concerned, Section 167 of the Mcrtor Vehictes Act, 1988 provkles as under: *167. Option regarding daims for compensatton in certain cases. - Notwthstanding anything contained in Vhe Workmen's Compensation Ac?t, 1923 (8 of 1923) where the death of, or bodlly injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may wtthout prejudtoe to the provisions of Chapter X claim such compensation under either of those Ads but not under both." In the instant case, before filing any applicatlon for grwit of compensation, the prtncipal emplo^r i.e. respondertf No.2/SEGL had deposited the amount of compensation with the Commfe^oner, which has been apportioned and disbursed byttie impugned oraler. 13. In the result, the appeal is allowed and the impugned order dated 17th December, 2(X , so far as it relates to tmpositton of penafty of Rs.25,000/- upon the appellant/employer, is hereby s^ a^Se. Respondent No.2/SECL atone is held liable for payment of amount of compensation. In case the amount of penalty has been depostted by the appellant, the same shall be refunded to tt. l4.No order as to costs. iS.Certified copy as per rules. -1. Sdf- , - G. Minhajuddin Judge W W WTV9 VS,