1 FA.825.1994 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.825 OF 1994 Smt.Begum Bano wd/o.Shabatulla Ahmed Shaikh Appellant versus Amritlal S. Pandey and another Respondents T.J.Mendon for appellant. CORAM : A.S.OKA, J. DATE : 28th October 2010 JUDGMENT :- 1. Heard learned counsel for the appellant. The appellant is the applicant in an application under section 22 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as the “said Act”). The claim for compensation was made on account of death of one Mustakeen during the course of his employment with the first respondent. The deceased was working as a Cleaner in a motor vehicle owned by the first respondent. The vehicle in question was insured with the second respondent. 2. The claim application was filed before the learned Commissioner for Workmen’s Compensation on 16th April 1992. The death was caused on 6th May 1990. The claim was not contested by the first respondent. The second respondent filed a written statement admitting that there was an insurance. The second respondent did not dispute the liability but contended that the second respondent is not liable to pay the penalty and interest. 3. By the impugned judgment and order, compensation of Rs.90,552/- was ordered to be paid to the appellant by the second respondent. 2 FA.825.1994 4. The only grievance made by the appellant in this appeal is as regards refusal of the learned Commissioner to grant interest under clause (a) of sub section 3 of section 4A of the said Act. The submission of the learned counsel appearing for the appellant is that the liability was never disputed by the second respondent but the compensation was not deposited. 5. I have considered the submissions. A perusal of the Roznama of the proceedings shows that both the respondents were served with the notice. The first respondent did not file appearance. The second respondent caused appearance to be filed through an advocate. 6. In the impugned judgment and order the learned Commissioner has observed thus :- "... ... ... The insurance company has put their appearances and a written statement is also filed by insurance company. In that statement it is specifically contended that Insurance Company is liable to indemnify the opposite party no.1 in respect of compensation payable by the opposite party no. 1 to the applicants. However they are denying to pay the penalty and interest." 7. On 15th December 1992, Vakalatnama of the advocate for the second respondent was filed. The Roznama discloses that on 27th January 1993 the advocate for the second respondent filed a purshis at Exhibit-6. The purshis records that the matter was pending for sanction of the amount of compensation before the competent authority and time of four weeks may be granted to deposit the cheque. It appears that on 22nd February 1993 on an application made by the second respondent, leave under section 170 of the Motor Vehicles Act, 1988 was granted and written statement of the second respondent was taken on record. In the written statement it was contended that the second respondent was liable to indemnify the first respondent in respect of the compensation payable by the first respondent to the appellant. However, it was contended that 3 FA.825.1994 the second respondent was not liable to pay any penalty and interest. 8. Thus, at least on 22nd January 1993, the second respondent accepted the liability to pay the compensation. However, the compensation amount was not deposited. 9. The second respondent-insurer can be made liable to pay the interest under clause (a) of sub section 3 of section 4A. However, the insurer cannot be made liable to pay the penalty. 10. This is a fit case where the interest ought to have been made payable by the second respondent from 22nd February 1993 inasmuch as on 22nd January 1993 a purshis was filed by the second respondent for adjourning the case till 22nd February 1993 for deposit of the cheque amount. 11. Hence, the impugned judgment and order needs to be modified accordingly and I pass following order :- A) In addition to the compensation awarded, the second respondent shall pay interest @ 12% p.a. on the sum of Rs.90,552/- from 22nd February 1993 till the date on which the compensation amount of Rs. 90,552/- was deposited; B) Time of two months is granted to deposit the interest amount; C) The appellant will be entitled to the costs of the appeal from the second respondent; D) The appeal is partly allowed on the above terms. (A.S.OKA, J.)