1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR First Appeal No. 275/2009 The New India Assurance Co. Ltd. Rajkamal Building, City Branch No. 106301, 2nd Floor, Panchasheel Chowk, Wardha Road, Nagpur. ...APPELLANT ...VERSUS... 1. Smt. Sujana w/o Lingaiah Kande, aged 45 years. 2. Raju Lingaiah Kande, age 31 years. 3. Chiranjiv Lingaiah Kande, aged 28 years. 4. Suhas Lingaiah Kande, aged 26 years. All r/o Mulkanoor, Tah. Binderpallye, Dist. Karim Nagar, (Andhra Pradesh) 5. M/s. Suresh Constructions Wadi, Amravati Road, Naka No. 10, Popular Society, Plot No. 91, Wadi, Nagpur. ...RESPONDENTS -------------------------------------------------------------------------------------------------- Mr. M. M. Suadme, Advocate for appellant. Mr. S. B. Dhande, Advocate for respondents. -------------------------------------------------------------------------------------------------- CORAM: R. K. DESHPANDE, J. DATE : MARCH 4, 2010. 2 P. C. 1. This appeal is preferred by New India Assurance Co. Ltd. challenging judgment and award dated 05.12.2008 passed by learned Commissioner under the Workman's Compensation Act in Application (W.C.No.03/2006). By this judgment and award, learned Commissioner has directed the appellant/Insurance Company to pay an amount of Rs.1,08,000/- out of compensation of Rs. 2,96,520/- along with interest at the rate of 12% p.a. from 03.11.2004 till its realisation. 2. The point which is urged in this appeal is whether the learned Commissioner was right in holding the appellant-Insurance Company liable to pay the amount of interest at the rate of 12% p.a. from 03.11.2004 till its realisation. 3. The learned Commissioner has held that the appellant- Insurance Company has not produced the original copy of the contract of Insurance Policy, as a result it is not known as to whether the liability of the Insurance Company to pay the amount of interest was excluded. On this ground, judgment of the Apex court reported in New India 3 Assurance Co. Ltd. ..v.s. Harshadbhai Amrutbhai Modhiya and anr.; 2006 (2) T.A.C. 321 S. C.(Supreme Court) and 2006 (5) SCC 192 has been distinguished and by placing reliance upon judgment in Ved Prakash Garg ..vs.. Premi Devi; (1997) 8 Supreme Court Cases 1, Insurance Company has been held liable to pay the amount of interest. 4. Mr. Sudame, learned counsel for the appellant, has urged that the instant case was governed by the decision of the Apex Court in New India Assurance Co. Ltd. ..v.s. Harshadbhai Amrutbhai Modhiya and anr. (supra) and the decision of the Apex Court in Ved Prakash Garg ..vs.. Premi Devi; (supra) was not applicable. For this purpose, he has relied upon Exh.-44 and 45. Exh.-44 produced on record is the Proposal Form for Workman's Compensation Insurance and it contains a condition which is reproduced below:- “The insurance under Table 'A' can be extended by charging an additional premium of 50% of the book rate to cover deceased mentioned in part 'C' of schedule III of workmen's compensation amended act. This insurance does not cover any interest and/or pending which may be imposed on an insured on account of failure to comply with the requirements of the said workmen's compensation Act 1923 as amended.” 4 At the bottom of this proposal form the employer has signed on declaration that he agrees that this declaration shall be on the basis of contract between him and the Insurance Company. Relying upon this provision of the proposal form Mr. Sudame, learned counsel for the appellant, has urged that it is governed by the decision of the Apex Court in New India Assurance Co. Ltd. ..v.s. Harshadbhai Amrutbhai Modhiya and anr. (supra). 5. As against the aforesaid contention, the learned counsel Mr.Dhande appearing for respondent nos. 1 to 4-claimants, has submitted that it was merely a proposal form and there is nothing placed on record to show that this proposal form containing such condition agreed between the parties. According to him, although Exh.- 45 is the policy already placed on record, it does not contain the stipulation as is mentioned in the proposal form, which is reproduced above. According to him, the Insurance Company has failed to produce the terms and conditions, which were attached to the policy forming the part of actual contract, entered into between the parties. Not only that, he has invited the attention to cross-examination of the witness of the 5 Insurance Company who has stated in para 4 of his deposition as under:- “It is true that in a copy of Insurance Policy (Exh.-45), nothing is mentioned therein that N.A. No.2 is not liable to pay interest & penalty....” In view of the aforesaid clear admission by the witness of the Insurance Company, he submits that the Tribunal was right in directing the Insurance Company to pay the amount of interest. 6. The decision of the Apex Court in New India Assurance Co. Ltd. ..v.s. Harshadbhai Amrutbhai Modhiya and anr. (supra) relied upon by Mr. Sudame, clearly based upon the contract of insurance, which was produced and proved, containing the condition that the Insurance granted, is not extended to include any interest and/or penalty imposed on the injured on account of his/her policy. In spite of such conditions, the Commissioner under the Workman's Compensation Act had held the Insurance Company liable to pay interest also and this was confirmed by the High Court by dismissing the appeal. The Apex Court reversed the judgment and on the basis of the stipulations 6 contained in the contract. It was held that the Insurance Company was not liable to pay interest. This judgment is not applicable to the facts of the present case for the reason that the contract of Insurance has not been produced on record and the witness of the Insurance Company has admitted in categorical term that there is nothing in the Insurance policy Exh.-45 to show that the Insurance Company is not liable to pay interest at the relevant time. 7. It is not disputed by learned counsel for the appellant that in terms of judgment of the Apex Court in Ved Prakash Garg ..vs.. Premi Devi; (supra) liability of the Insurance Company will include the liability to pay compensation as well as the interest and it is only in terms of the specific stipulation incorporated in the contract of insurance that such liability on payment of interest can be done away with or contracted out. 8. In the present case, the Insurance Company having failed to establish that the contract of insurance entered into between the employer and the appellant/Insurance Company contains any such 7 stipulation excluding liability of the Insurance Company to pay interest, the Tribunal was right in holding the Insurance Company liable to pay the amount of interest. 9. In the result, there is no substance in the present appeal. The same is, therefore, dismissed. If any amount is deposited by Insurance Company in this Court, the same shall be remitted to the Commissioner, Workman's Compensation for disbursement in accordance with law. No order as to costs. JUDGE kahale