FA/910/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 910 of 1987 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 ? ========================================================= NEW INDIA ASSURANCE CO.LTD. - Appellant(s) Versus VASAIBAI WIDOW OF RAMJIBHAI GOPALBHAI AYAR & 6 - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1, None for Defendant(s) : 1 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/05/2008 ORAL JUDGMENT 1. This Appeal is directed against the judgment and award dated 29.09.1986 passed by the learned Civil Judge (S.D.) & Ex-officio FA/910/1987 2/5 JUDGMENT Commissioner for Workmen's Compensation, Kutch at Bhuj in Workmen's Compensation Case No. 4 of 1985 whereby, the said application was allowed and the opponents were held liable to pay an amount of Rs.1,29,423/- with interest @ 6% per annum from the date of the application till the deposit was made. 2.0 The brief facts of the case are as under; 2.1 On 10.11.1984 while deceased – Ramjibhai Gopalbhai was discharging his duties as a Driver of the Truck bearing registration No. GTY – 6557, belonging to original opponent no. 1 and insured with the appellant, original opponent no. 2, it met with an accident with a bus bearing registration No. GRT – 6375 at about 1600 hrs. on the Sayla – Rajkot Road. As a result of the said accident, said Ramjibhai sustained severe injuries and ultimately, succumbed to the injuries. 2.2 The legal heirs and dependents of the deceased, therefore, filed a Workmen Compensation Case before the Court of learned Civil Judge (S.D.) & Ex-Officio Commissioner for Workmen's Compensation, Kutch at Bhuj claiming compensation of Rs.85,428/-, penalty of Rs.42,714/- and interest of Rs. 2,563/-. In the said case, the FA/910/1987 3/5 JUDGMENT opponents filed their written statement. The trial Court framed the issues and after considering the oral as well as documentary evidence on record, passed the impugned judgment and decree. Hence, this Appeal. 3. Heard learned Advocate for the appellants. None appears on behalf of the opponents. The main contention raised by the appellant – Insurance Company is that it cannot be held liable to pay the amount of penalty imposed on the owner / employer of the vehicle under the provisions of the Workmen's Compensation Act. On perusal of the record, I am of the view that the issue involved in this Appeal is squarely covered by a decision of the Apex Court in the case of Ved Prakash Garg v. Premi Devi & Ors. reported in 1998 A.C.J. Page 1 wherein, it has been held that an Insurance Company, which has insured the employer / owner of the vehicle against third party risk and against the claims for compensation arising out of the proceedings under the Workmen's Compensation Act, is not liable for penalty imposed against the employer as the penalty amount does not automatically flow from the main liability incurred by the insured employer but, it is imposed on account of the personal fault of the insured backed up by any justifiable cause. FA/910/1987 4/5 JUDGMENT 4. In the present case, the Court below has imposed a penalty of Rs.42,714/- and has made the appellant – Insurance Company jointly liable to pay the same, which is, contrary to the principle laid down by the Apex Court in Ved Prakash Garg's case (supra). Hence, the impugned direction of the Court below qua making the appellant – Insurance Company liable to pay the amount of penalty deserves to be quashed and set aside. 5. In the result, the Appeal is partly allowed. The impugned judgment and award dated 29.09.1986 passed by the learned Civil Judge (S.D.) & Ex-officio Commissioner for Workmen's Compensation, Kutch at Bhuj in Workmen's Compensation Case No. 4 of 1985 is modified to the extent that the direction qua making the appellant – Insurance Company liable to make payment of Rs.42,714/-, being the amount of penalty, is quashed and set aside. The rest part of the impugned judgment is confirmed. It is clarified that if the claimants have already withdrawn the amount, it shall be open to the appellant – Insurance Company to recover the same from the owner of the vehicle / employer and if it is not withdrawn, then the claimants shall be at liberty to recover the same from the owner of the vehicle / employer. With the above FA/910/1987 5/5 JUDGMENT clarification, the Appeal stands disposed of. No order as to costs. [K. S. JHAVERI, J.] Pravin/*