^ s'f ^ ^ ^^^ ^S^f v^y'. ^^A^^^^s H!GH_CPURT OF CHHATTISGARH AT BILASPUR w S-B-: Hon'ble Shri Justice Radhe Shyam Sharma MisceIIaneous Appeal (C) No.429 of 2009 Appellant Respondents Vs. 1. 2. 3. Sardar Manohar Singh, S/o. Sardar Puran Singh, aged about 55 years, R/o. House No.309, Ward No.16, Guru Nanak Nagar, P.S. Mohan Nagar, Durg (CG) Jivrakhan Sahu, S/Q: Late Ramesar Sahu, aged ^about 53 years, R/o. Somai Khfurd, P.S. Saja, District Durg (CG) ^, Smt. Geeta Bai, W/o. Jivrakhan Sahu, aged about 50 years, R/o. Somai Khurd, Post Bargada, P.S. & Tahsil Saja, District Durg (CG) The New India Insurance Company Pvt. Ltd, Through its Branch Manager, Branch Parakh Bhavan, Station Road, Durg (CG) Miscellaneous Appeal (C) No.490 of 2009 Appellant Respondents Vs. 1. The New India Assurance Company Ltd, Through its Divisional Manager, The New India Assurance Company Ltd, Second Floor, Rama Trade Center, Bus Stand Road, Bilaspur (Chhattisgarh) Jeevrakhan Sahu, S/o. Late Ramesar Sahu, aged about 53 years, Smt. Geeta Bai, W/o. Jeevrakhan Sahu, aged about 50 years, Both R/o. Somai Khurd, Post Bargada, P.S. & Tahsil Saja, District Durg (CG) Sardar Manohar Singh, S/o. w Sardar Puran Singh, R/o. House No.309, Ward No.16, Guru Nanak Nagar, P.S. Mohan Nagar, Durg (CG) Present: Shri MPS Bhatia, counsel for owner in both the instant appeals. Shri Sourabh Sharma, counsel for The New India Assurance Company Ltd in both the instant appeals. Shri Goutefm Khetrapal, counsel for claimants in both the instant appeals. Miscellaneous Appeals under SeTction 30 of the Workmen's Compensation Act. 1923 ORAL ORDER (Passed on 4th August, 201 1) The above mentioned appeals arise out of a common award and relates to one and same accident, therefore, both the appeals are heard together and being decided by this common order. \ 2. Misc. Appeal (C) No.429/09 has been filed by the owner of the truck bearing registration No.CG 07 ZC 2198 and Misc. Appeal (C) No.490/2009 has been filed by the New India Assurance Company Limited, which is insurer of thetruck. 3. Misc.Appeal (C) No.429/09 has been preferred by the owner of the truck for setting aside the award dated 18.02.09, passed by the Commissioner for Workmen's Compensation, Labour Court, Durg (for short 'the Commissioner') in case No.157/W.C. Act Fatal/2005, whereby the Commissioner has awarded Rs.1,08,455/- by way of penalty against the appellant/owner of the truck. w'se*-^.. -'-€ "^ ^fM^ M.A.(C) No.490/09 has been filed by thelnsurance Comptiny, challenging the award dated 18.02.2009, passed by the Commissioner in case No.157/W.C. Act Fatal/2005, whereby Rs.2,16,910/- has been awarded by way of compensation and liability to pay the compensation has been fastened on the Insurance Company. 4. Brief facts of the case are that respondents 1 & 2 filed an application under Section 22 of the Workmen's Compensation Act, 1923 (henceforth 'the Act, 1923') claiming compensation for the death of their son, namely, Rajendra Sahu. The deceased was employed as a driver in the truck owned by Sardar Manohar Singh. He was driving the truck and suddenly, when he felt pain in his chest, he stopped the truck and took rest in the truck. While he was taking rest in the truck, he died on 06.12.2004. The Commissioner has awarded compensation of Rs.2,16,910/- in favour of the claimants, for which the Insurance Company has been held liable to pay and the Commissioner has also awarded penalty of Rs.1,08,455/- as per provisions of Section 4A(3) of the Act, 1923 and has directed the owner of the truck to pay the penalty to the claimants within a period of one month from the date of the award. 5. The appellants of both the appeals filed their written statements before the Commissioner separately. The owner of the truck in his written statement pleaded inter alia that the deceased was under hisemploymentand his monthly wages was Rs.2,000/- ^'•" ..^ '"••a^ ff ^ ^ ^t^r^'^^ ^ I ^^^It'^ ^? ^ -'^.^.^,^ ^ •^ .? ^^Ss^f and at the relevant time, the truck was duly insured with the Insurance company. 6. The Insurance Company opposed the application filed by the claimants and pleaded that the death of the deceased was due to cardiac arrest and illness, therefore, the Insurance Company is not liable to indemnify. 7. MA(C) No.429/2009 was admitted as per first proviso to Section 30 of the Act, 1923 and following substantial question of law was framed by this Court on 21.4.2009: "Whether the learned Commissioner, Workmen Compensation, Durg, was justified in awarding 50 percent of the awarded amount, as penalty, under Section 4A (3)(b) of the Workmen's Compensation Act, against the appellant, without affording him reasonable opportuhity of hearing." 8. Shri MPS Bhatia, learned counsel appearing for the owner of the truck has argued that the Commissioner has not afforded a reasonable opportunity of hearing to the owner of the truck before awarding penalty as per the provisions of Section 4A(3) of the Act, 1923 against him and, therefore, the penalty awarded against the owner of the truck is bad in law. 9. Shri Sourabh Sharma, learned counsel appearing on behalf of the Insurance Company has argued that the death of Rajendra Sahu was due to cardiac arrest and illness and his death was not caused during employment of the owner of the truck. Learned counsel prayed that the matter may be remanded to the Commissioner for a fresh decision. ^ 10. Shri Goutam Khetrapal, learned counsel appearing for the claimants has submitted that the issues framed by the Commissioner are not proper and, therefore, thematter requires reconsideration at the end of the Commissioner. He also prayed for remand ofthe matter to the Commissioner for decision afresh. IIN»^; 11. After perusal of the impugned award, it appears that before awarding penalty, the owner of the truck was not given a reasonable opportunity of hearing by the learned Commissioner. It appears that while deciding the case, the learned Commissioner has overlooked the provisions contained in Section 4A(3)(b) of the Act, 1923 and has awarded the penalty against the owner of the truck. 12. Clause (b) of sub-section (3) of Section 4A of the Act, 1923 runs as under: "4A. Compensation to be paid when due and penalty for default— xxxxx xxxxx xxxxx (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall— (a) xxxxx xxxxx xxxxx (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty: Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a ^g^N^^ reasonable opportunity to the employer to show cause why it should not be passed." 13. So far as the substantial question of law is concerned, the proviso to sub-Section (3) of Section 4A of the Act, 1923 leaves no room for any doubt that an order for payment of penalty shall not be passed under sub-Section (3) without giving a reasonable opportunity to the employer to show cause why it should not be passed. A duty was cast on the lower Court to afford a reasonable opportunity of hearing to the employerbefore making an order for payment of penalty. 14. In view of the above, both the appeals are allowed and the impugned award dated 18.2.09 is set aside. The matter is remitted to the Commissioner back for reconsideration and passing award afresh after affording a reasonable opportunity of hearing. Needless, to mention that the parties shall be allowed to adduce further evidence, amend their pleadings, file documents or get the documents verified etc. and after giving opportunity of hearing to the parties, the Commissioner shall pass a fresh award. 15. Learned counsel for the employer/owner of the truck submits that the employer/owner of the truck has already deposited some amount before the Commissioner and the said amount, if not already disbursed to the claimants, may not be disbursed till the decision afresh to be taken by the Commissioner. |SI»« »^/ 16. It is directed that if the amount deposited by the owner of the truck has not been disbursed to the claimants, the same shall be subject to the fresh award to be passed by the Commissioner. 17. Registry is directed to send the record of the Commissioner backforthwith. No order as to costs. 18. A copy of this order be placed on the record of the connected matter. Sd/- R.S. Sharma Judge Bini