FA/227120/2006 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2271 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 DAYALBHAI NARSIBHAI KOLI & 1 - Defendant(s) ========================================================= Appearance : MR PALAK THAKKAR FOR MR HASMUKH THAKKER for Appellant(s) : 1, RULE SERVED for Defendant(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/08/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and award dated 21.04.2006 passed by the learned Commissioner under the Workmen's Compensation Act, 1923, Bhuj – Kutch in W.C. (NF) Application No.9 of FA/227120/2006 2/3 JUDGMENT 2004 whereby, the said application was allowed and the appellant – Insurance Company was held liable to pay an amount of Rs.2,58,336/- to the respondent as compensation with penalty @ 40% of the aforesaid amount and interest @ 12% p.a. from the date of accident till its realization. 2.0 The facts in brief are that respondent no. 1, original applicant, was working as a Driver of the Truck bearing registration No. GJ-12U-7586, belonging to respondent no. 2 herein, original opponent no. 2. On 30.05.1998, while respondent no. 1 was going towards Rajkot in the said Truck for the delivery of certain goods, he met with an accident. As a result thereof, respondent no. 1 sustained severe bodily injuries and also sustained a fracture in the right leg. 2.1 Respondent no.1, therefore, filed an application before the Court below claiming compensation of Rs.2,58,336/- with 12% interest and penalty. The Court below, after appreciating the evidence on record, allowed the said application and issued directions as stated in the earlier part of this judgment. Hence, this appeal. 3. Heard learned counsel for the appellant – Insurance Company. Though served none appears on behalf of the respondents. The issue involved in this appeal is squarely covered by a decision of the Apex Court in the case of New India Assurance Co. Ltd. v. Shiv Singh & Anr. reported in 2000 A.C.J. 1434 wherein, it has been held that u/s. 4-A(3)(b) of the Workmen's Compensation Act, 1923 r/w. Section 147 of the Motor Vehicles Act, an Insurance Company could not be held liable to pay penalty. Looking to the facts of the case, the principle laid down in FA/227120/2006 3/3 JUDGMENT the aforesaid decision shall apply in the present case and consequently, the appellant – Insurance Company cannot be held liable to pay the amount of penalty. Hence, the impugned award is required to be modified accordingly. 4. In the result, the appeal is partly allowed. The impugned award passed by the Court below is quashed and set aside only qua the direction imposing 40% penalty on the appellant – Insurance Company. The rest of the impugned award stands confirmed on the same terms. It shall be open to the original claimant to recover the amount of penalty from the employer concerned. The appeal stands disposed of accordingly. No order as to costs. [K. S. JHAVERI, J.] Pravin/*