FA/1544/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1544 of 2006 With CIVIL APPLICATION No. 5949 of 2006 In FIRST APPEAL No. 1544 of 2006 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 ? ========================================================= NEW INDIA ASSURANCE CO.LTD. - Appellant(s) Versus KASTURIDEVI SHRAVANLAL JAT & 6 - Defendant(s) ========================================================= Appearance : MR KV GADHIA for Appellant(s) : 1, SERVED BY AFFIX.-(R) for Defendant(s) : 1 - 7. MR SANDEEP N BHATT for Defendant(s) : 1,5 - 6. ========================================================= FA/1544/2006 2/5 JUDGMENT 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 – New India Assurance Co.Ltd. challenging the Judgement and Award dtd.1/10/2005 passed by the learned Commissioner under Act, Labour Court, Kutch-Bhuj in Workmen's Compensation Case (Fatal) No.24 of 2003, in so far as directing the appellant – Insurance Company to pay 50% penalty to the original claimants and further issuing directions to recover the said penalty from the erring officer of the Insurance Company. 2. As the controversy raised in the present appeal is in narrow compass, this Court is not narrating the facts in detail. 3. Mr.Vaishnav, learned advocate for Mr.Gadhia, learned FA/1544/2006 3/5 JUDGMENT 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 been made by the learned advocate appearing on behalf of the appellant. He has further submitted that even the directions issued by the learned Commissioner to recover the penalty from the erring officer is also beyond jurisdiction. No other submissions have been made by the learned advocate appearing on behalf of the appellant. 4. Mr.Sandip Bhatt, learned advocate appearing on behalf of the original claimants is not in a position to show any contrary judgement and/or other judgement taking a different view than the view taken by the Hon'ble FA/1544/2006 4/5 JUDGMENT Supreme Court in the case of Ved Prakash (supra). 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.9/2/2001 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.1/10/2005 passed by the learned Commissioner under Act, Labour Court, Kutch-Bhuj in Workmen's Compensation (Fatal) Case No.24 of 2003 in so far as directing the appellant Insurance Company to pay 50% penalty, is hereby quashed and set aside. The directions issued by the learned Commissioner to recover the amount of penalty from the erring officer of the Insurance Company is also quashed and set aside. Consequently, the appellant – Insurance Company would be entitled to get back/recover the differential amount of penalty already deposited. If any excess amount is deposited by the appellant before FA/1544/2006 5/5 JUDGMENT 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. In view of disposal of the main appeal, no orders in Civil Application No.5949 of 2006. [M.R. SHAH, J.] rafik