FA/328120/2006 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3281 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 ? ========================================================= THE ORIENTAL INSURANCE CO. LTD. - Appellant(s) Versus RAMANBHAI F. PATEL C/O. JITUBHAI SHANTILAL SHAH & 1 - Defendant(s) ========================================================= Appearance : MR SHALIN N MEHTA for Appellant(s) : 1, None for Defendant(s) : 1, MR MURALI N DEVNANI for Defendant(s) : 1.2.1 RULE SERVED for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/08/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and award dated 10.02.2001 passed by the learned Judge & Ex-officio FA/328120/2006 2/4 JUDGMENT Commissioner for Workmen's Compensation, Anand in W.C. Application No.20 of 1998 whereby, the said application was allowed and the opponents, appellant and respondent no. 2 herein, were jointly and severally held liable to pay an amount of Rs.2,01,600/- along with interest @ 6% p.a. from the date of application and penalty of Rs.1,00,800/- being 50% of the amount of compensation. 2.0 The brief facts of the case are that deceased – Ghanshyambhai R. Patel was an employee of respondent no. 2 – Company. On 05.05.1998, during the course of employment, the deceased sustained an electric shock, on account of which he had to be shifted to a Hospital for necessary treatment. However, during the course of treatment, the deceased expired. 2.1 The legal heirs of the deceased, therefore, filed an application before the Court below claiming compensation of Rs.2,25,220/- and other benefits. The trial Court, after appreciating the evidence on record, allowed the said application and issued directions as narrated in the earlier part of this judgment. Hence, this appeal. 3. Ms. Fozda, learned Advocate, appearing on behalf of Mr. Shalin Mehta for the appellant, has submitted that the deceased was not a regular employee of respondent no. 2 – Company and that he was a seasonal employee only. Therefore, the claimants are not entitled to any compensation under the provisions of the W.C. FA/328120/2006 3/4 JUDGMENT Act. She has further submitted that under the provisions of the W.C. Act, the Insurance Company is not liable to pay any penalty on the amount of compensation. 4. Mr. Murli Devnani, learned Advocate appearing on behalf of the claimants, has submitted that even if the deceased is considered to be a seasonal employee of respondent no. 2, the same will not absolve the appellant – Insurance Company from its liability, as the deceased would even otherwise be considered a “workman” under the provisions of the Act. However, so far as the contention raised by the appellant with regard to the liability of the appellant to pay penalty is concerned, Mr. Devnani is not in a position to dispute the said proposition of law. 5. Heard learned counsel for the respective parties and perused the documents on record. The fact that the accident in question took place at the time when the deceased was in employment of respondent – Company is not disputed. However, having gone through the impugned judgment, it transpires that the contention raised by the appellant that the deceased was not a regular employee and that he was a seasonal employee only, was not raised before the Court below and that the same has been raised for the first time only before this Court, which can not be permitted. Hence, the said contention cannot be entertained at this stage and is, accordingly, rejected. FA/328120/2006 4/4 JUDGMENT 6. However, so far as the contention raised by the Insurance Company as regards the penalty imposed by the Court below is concerned, the same deserves consideration as it is contrary to the principle laid down by the Hon'ble Apex Court in the case of Ved Prakash Gard v. Premi Devi & Ors. reported in A.I.R. 1997 S.C. 3854. It is well-settled that under the provisions of the W.C. Act, an Insurance Company cannot be held liable to pay penalty. Hence, the impugned direction issued by the Court below qua imposing penalty on the Insurance Company is required to be quashed and set aside. 7. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and award passed by the Court below is modified to the extent that the direction qua imposing penalty on the appellant – Insurance Company is quashed and set aside. The rest part of the impugned judgment and award stands confirmed on the same terms. However, it is clarified that it shall be open to the original claimants to recover the said amount from the employer. The principal amount deposited by the appellant – Insurance Company will be paid to the original claimants and the balance amount shall be returned to the Insurance Company. The appeal stands disposed of accordingly. No order as to costs. [K. S. JHAVERI, J.] Pravin/*