1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.295/1994 United India Insurance Co.Ltd Branch Office – Subhash Road,Beed Taluka & District : Beed Through its Asstt.Divisional Manager at Aurangabad (Authorised signatory) .. APPELLANT [ORIG.RES.NO.3] VERSUS 1] Sk.Ibrahim S/o Sk.Papamiyan Age 67 years, Occ-Labour R/o Chausala,Tq.& Dist.Beed 2] Madinabee W/o Sk.Ibrahim Age 52 years, Occ-Household R/o Chausala, Tq. & Dist.Beed 3] Sk.Ismail S/o Sk.Ibrahim Age 17 years, Occ-Minor U/g of Respondent no.1. .. RESPONDENTS [ORIG.APPLICANTS] 4] Dilip S/o Chandmal Lodha Age 30 years, Occ-Business R/o Chausala, Tq.& Dist.Beed 5] Vinay S/o Motilal Sancheti 2 Age 27 years, Occ-Business R/o Burud Galli, Peth Beed Beed. .. RESPONDENTS [ORIG.RES.NO.1 & 2] .... Shri V.R.Mundada, Advocate for appellant .... CORAM : R.K.DESHPANDE,J. DATE : 11/08/2009 ORAL JUDGMENT : 1] This appeal has been filed by the United India Insurance Company Ltd. challenging the judgment and award dated 31/3/1992 passed by learned Commissioner for Workmen’s Compensation, Beed in W.M.C.No.1/1990. The operative part of the order impugned in this appeal is reproduced below : “The Opponents no.1 to 3 do pay to the petitioner jointly and severally the amount of Rs.81,079.20 Ps. with interest at 6% per annum from the date of petition till its full payment together with the amount of Rs. 24,323.76 Ps. by way of penalty. The opponents no.1 to 3 do pay jointly and severally the cost of this petition to the applicants and bear their own costs.” 3 The learned counsel for the appellant has challenged the aforesaid order only to the extent it imposes liability upon the appellant to pay an amount of Rs.24,323.76 Ps. by way of penalty to the original claimants. The learned Commissioner had framed issues as to whether the appellant insurance company has proved that it is not liable to pay compensation and penalty. The issue has been answered in negative, meaning thereby that the appellant insurance company is held liable to pay penalty as contemplated by Section 4(A) (3) (b) of the Workmen’s Compensation Act. 1929. 2] The learned counsel challenged this on the ground that the liability to pay penalty under Section 4(A) of the said Act is that of the employer and the insurance company is neither liable to pay the penalty nor is liable to reimburse the amount of penalty to be paid by the employer. In support of his contention, the learned counsel for the appellant has relied upon the decision of the Apex Court reported in 1998 ACJ page 1 Vek Prakash Garg V/s Premi Devi and others and the judgment delivered by this Court on 25/6/2008 in First Appeal No. 1030/2007. 3] The Apex Court in its judgment in Ved Prakash’s case cited 4 supra has clearly held that so far as the amount of penalty imposed on the insured employer under the contingencies contemplated by Section 4-A (3) (b) is concerned, that is on account of personal fault of the insured, not backed up by any justifiable cause and the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. This judgment of the Apex Court has been followed by the learned Single Judge of this Court in his judgment in First Appeal No.1030/2007 in the case of M/s Muley Brothers Pvt.Ltd. V/s Sow.Samindarabai Dandge delivered on 25/6/2008. The learned Single Judge has held that in so far as the penalty amount is concerned, the position is no more res-integra and the insurer cannot be held liable to pay the amount of penalty. The Appeal therefore, succeeds. 4] Appeal is allowed. The judgment and award dated 31/3/1992 passed by learned Commissioner, Workmen’s Compensation, Beed in W.M.C. No.1/1990 is quashed and set aside only to the extent it holds the appellant insurance company liable for payment of the penalty to the sum of Rs.24,323.76 Ps. to the claimants. The impugned order, therefore, stands set aside to the extent it directs only the appellant insurance company to pay an amount of Rs.24,323.76 Ps. by way of penalty to the claimants-respondents 1 to 3 herein. The impugned 5 award, so far as it relates to payment of compensation and interest is concerned, the same is maintained. The appeal is thus partly allowed with no order as to costs. [R.K.DESHPANDE] JUDGE umg/fa295-94