Gujarat High Court
National Insurance Co. Ltd vs Shivubhai Sangramji Jadeja on 7 July, 2025
NEUTRAL CITATION
C/FA/3308/2007 JUDGMENT DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3308 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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NATIONAL INSURANCE CO. LTD.
Versus
SHIVUBHAI SANGRAMJI JADEJA & ANR.
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR MEHUL S SHAH(772) for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/07/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant - National Insurance Company Limited against the judgment and award dated 24.04.2006 passed by the learned Commissioner for Workmen's Compensation at Bhuj-Kachchh in Workmen's Compensation Case (N.F.) No.5 of 1998, whereby the learned Commissioner has awarded compensation of Rs.2,58,336/- with interest @ 12% p.a. in favour of original claimant and also directed the appellant Insurance Company to pay 40% penalty alongwith other expenses.
2. The short facts giving rise to present appeal are that, the Page 1 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined respondent No.1 - original claimant was employed with respondent No.2 and was working as a vehicle driver of respondent No.2. That, on 13.12.1996, the respondent No.1 was on duty and was returning from Bhujpur sim to Bhupur with Chhakada bearing registration No. GJ-12-U-6436 of respondent No.2 owned by respondent No.1. That, he was driving the said Chhakada on the left hand side of the road with moderate and controllable speed. That, around 15-30 hours, the said Chhakada was about 1 km away from Bhujpur towards Mundra on Mundra-Bhujpur-Mandvi road, at that time, a Jeep bearing registration No. GJ-X-964 came from the opposite direction in full speed and in zig-zag manner. That, the Jeep driver lost control over his Jeep and dashed and collided with Chhakada. In the result, the respondent No.1 sustained serious injuries on different parts of he body resulting into permanent and total disability. At the time of accident, the respondent No.1 was aged 26 years and therefore, he had claimed compensation by filing Workmen's Compensation Case being Workmen's Compensation Case (N.F.) No.5 of 1998, whereby the learned Commissioner has awarded compensation of Rs.2,58,336/- with interest @ 12% p.a. and also directed the appellant Insurance Company to pay 40% penalty alongwith other expenses.
3. Being aggrieved and dissatisfied with the aforesaid judgment and award passed by the learned Commissioner, the appellant Insurance Company has filed the present First Appeal under Section 30 of the Workmen's Compensations Act, 1923.
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4. Heard learned advocate Mr. Sunil B. Parikh, appearing for the appellant - National Insurance Company Ltd. and learned advocate Mr. Mehul S. Shah, appearing for the respondent No.1 - original claimant.
5. Learned advocate Mr. Parikh has submitted that the impugned judgment and award is challenged mainly on two counts viz., the direction fasten against the appellant Insurance Company to pay penalty and the interest awarded by the learned Commissioner @ 12%. He has submitted that now it is well settled that so far as the liability of penalty is concerned, it cannot be fastened against the Insurance Company but, it is required to be borne by the employer who failed to pay the awarded amount within 30 days from the date of award and it is now covered by various decisions of the Hon'ble Apex Court as well as this Court and therefore, the directions qua payment of penalty @ 40% is absolutely illegal, unjust and against the settled principles of law. He has further submitted that the rate of interest awarded by the learned Commissioner is also unjust and disproportionate. Learned advocate Mr. Parikh has submitted that the issue relating to liability of payment of penalty is directly covered by the decisions of the Hon'ble Apex Court and therefore, urged that the present appeal be allowed and the directions qua payment of penalty be appropriately modified. He has also submitted that so far as the interest awarded by the Commissioner @ 12% is concerned, it is on very higher side and therefore, he has requested to decrease the rate of interest from 12% to 9% and urged that the present appeal be allowed. In support o his Page 3 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined submissions, learned advocate Mr. Parikh has referred and relied upon the decision of the Hon'ble Apex Court rendered in case of New India Assurance Company Ltd. vs. Harshadbhai Amrutbhai Modhiya and another, reported in [2006] 5 SCC 192.
6. As against that, learned advocate Mr. Shah appearing for the respondent No.1 - original claimant, has submitted that so far as the penalty is concerned, he has nothing to say further as it is already covered by numbers of decisions but, so far as the rate of interest is concerned, it is subsequently amended by the Act itself where the rate of interest is from 6% to 12% and therefore, there is no any infirmity in the impugned award passed by the learned Commissioner and therefore, so far as the interest part is concerned, no altercation is required to be made in the impugned award. Learned advocate Mr. Shah has submitted that so far as the rate of interest is concerned, the issue is already decided by the Hon'ble Apex court in various decisions and therefore, urged that the rate of interest be maintained as observed by the learned Commissioner in the impugned award and no interference is required to be called for in the impugned award passed by the learned Commissioner.
7. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. So far as the amount of penalty is concerned, it is already covered by the decision of this Court in First Appeal No.4211 of 2006 relying upon various decisions of the Hon'ble Apex Court, Page 4 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined wherein, it has been observed that the liability to pay the penalty is on the insured and not on the Insurance Company. The relevant paragraphs are reproduced hereunder :
"9. At this stage, it is appropriate to take into account the observations made by Hon'ble Apex Court in case of Fulmati Dhramdev Yadav vs. New India Assurance Co. Ltd. reported in 2023 (12) Scale 71, wherein Hon'ble Apex Court has held as under:-
"Analysis and Consideration
14. The act governing the present dispute, i.e., the Workmen Compensation Act, 1923, has been, vide The Workmen's Compensation (Amendment) Act, 2009, amended, by which the word "workmen" has been substituted by "employees"
rechristened as the Employees Compensation Act, 1923.
15. What this Court must consider is whether the impugned judgement is sustainable in law? On merits, the consideration would be whether the order of the Commissioner, in light of the materials on record, can stand or not? In other words, the impugned judgement must stand true on two grounds, (i) statutory text; and (ii) whether the materials on record support the conclusion drawn therein or not?
16. Appeals within the act are governed by Section 30 which is extracted below for reference: -
"30. Appeals. -- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely :-- an order awarding as compensation a lump sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; 1 [(aa) an order awarding interest or penalty under section 4A;]
(b) an order refusing to allow redemption of a half- monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased 6 [employee], or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub- section (2) of section 12; or
(e) an order refusing to register a memorandum of Page 5 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined agreement or registering the same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than 2 [ten thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify]:
Provided, further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:
[Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.] (2) The period of limitation for an appeal under this section shall be sixty days.
(3) The provisions of section 5 of 4 [the Indian Limitation Act, 1963 (36 of 1963)] shall be applicable to appeals under this section."
(Emphasis Supplied)
17. The Act is unequivocal in stating that an appeal from an order of Commissioner can be entertained only if there exists a substantial question of law to be considered. It has been observed by this Court that the phrase "substantial question of law" within this Act shall be understood by its general meaning. When considering the general meaning of this phrase, naturally, the reference is to the Code of Civil Procedure (CPC). The rule therein is that framing of a substantial question of law is of cardinal importance.
18. A bare perusal of the impugned judgement shows that the Court did not frame any such question.
19. The wording of the Act indicates that the existence of such a question is a prerequisite to the appeal being entertained.
20. Illustratively, in North - East Karnataka Road Transport Page 6 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined Corporation v. Sujatha7 (Two-Judge Bench) amongst numerous other cases, this Court has observed:
"12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."
21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings. Here, the impugned judgement does not, even remotely, reflect the observation that the findings arrived at by the Commissioner are perverse. The difference, between the two judgements, i.e., the order of the Commissioner and the judgment in First Appeal, was on the point of the employer- employee relationship having been established. The Commissioner held such relationship to have been established however, the appeal Court observed that "claimants have clearly failed to prove this aspect" 7 (2019) 11 SCC 514
22. It may here only be noted that the Commissioner had not returned any findings in respect of the validity of non- availability of the license of the deceased nor was it one of the questions framed by the Commissioner for consideration. In such a situation, while exercising powers within the limited purview allowed by section 30 of the Act, the learned Court below erred in making observations and giving a holding in that regard.
23. It has also been observed by this Court that the Commissioner is the last authority on facts involved in a case. In Golla Rajamma & Ors. v. Divisional Manager & Anr.8 (2- Judge Bench) it was observed that "under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to reappreciate the evidence and recorded its own findings on 8 (2017) 1 SCC 45 percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court Page 7 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined under Section 30 of the Act."
24. Keeping in view the said principles, the impugned judgement, ex-facie, appears to be in contravention thereto."
10. It appears that at the time of admission of the Appeal, the Court has not framed any substantial question of law however, considering the submission advanced by Mr. Mazmudar, learned counsel for the appellant and in view of above referred decision of the Hon'ble Apex Court, the substantial question of law arises for consideration before this Court is, whether the insurance company is liable to pay the penalty @ 50% upon failing to deposit the amount of compensation within 30 days or not?
11. For that, the submission of learned counsel for the appellant is that so far as the liability to pay the penalty is concerned, if the awarded amount is not paid to the claimants within 30 days from the date of accident, then only they are entitled for 50% of penalty, as provided under the statute but that liability is cast upon the insurer by virtue of the contractual relationship and thus, liability to pay 50% of penalty is upon the insurer and not on the insurance company.
12. In view of the discussion made by the Hon'ble Apex Court in the above referred judgment, the contention raised by learned advocate for the appellant qua liability to pay penalty @ 50% is required to be considered. Therefore, present appeal is entertained only qua two aspects one is liabilities to pay the penalty and second is rate of interest.
13. At this stage, it is also relevant to take into account provision of Section 30 of the Workmen's Compensation Act, which reads as under:-
"30. Appeals.--
(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a)an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;(aa)an order awarding interest or penalty under section 4A;
(b)an order refusing to allow redemption of a half-monthly payment;
(c)an order providing for the distribution of compensation among the dependants of a deceased employee, or disallowing any claim of a person alleging himself to be such dependant;
(d)an order allowing or disallowing any claim for the amount Page 8 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined of an indemnity under the provisions of sub-section (2) of section 12; or
(e)an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify:
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:
Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. (2)The period of limitation for an appeal under this section shall be sixty days.
(3)The provisions of section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section."
14. The provision of Section 30 of the Workmen's Compensation Act establishes that the High Court cannot interfere in the award passed by the Commissioner unless and until it is satisfied that the substantial question of law is involved in the appeal. The statutory provision restricts the interference of the High Court. However, considering the fact and the limitation to entertain present appeal, more particularly Section 30 of the Workmen's Compensation Act, only the circumstance which is enumerated under Section 30 of the Workmen's Compensation Act, High Court can interfere with the award passed by the Commissioner.
15. It appears that so far as the amount awarded towards the quantum of compensation is concerned, the insurance company is unable to point out any illegality or irregularity in the impugned judgment and order. Hence, so far as the amount of compensation awarded by the learned Commissioner to the tune of Rs.4,15,960/- is concerned, this Court is not interfered in the said amount. This Court is of the opinion that the said amount is just and proper."
7.1 At this stage, it would also be fruitful to refer to the Page 9 of 11 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:58 IST 2025 NEUTRAL CITATION C/FA/3308/2007 JUDGMENT DATED: 07/07/2025 undefined decision of this Court in case of New India Assurance Company Ltd. vs. Harijan Dalabhai Jemal and Others, reported in [2010] 4 GLR 3192, relevant paras 8 and 9.
8. Considering the submissions and considering the aforesaid decisions, I am of the opinion that the present appeal is required to be partly allowed and the impugned award passed by the learned Commissioner is required to be modified to the extent that the direction qua liability fasten upon the appellant Insurance Company to pay the penalty @ 40% is hereby quashed and set aside and it is modified to the extent that the it is open for the respondent No.1 - original claimant to recover the penalty amount from the respondent No.2 herein - original opponent No.1 by way of filing appropriate proceedings. So far as the rate of interest awarded by the learned Commissioner is concerned, since it is covered by the decisions of the Hon'ble Apex Court, I am of the opinion that the rate of interest awarded by the learned Commissioner is just and proper and no interference is required to be called for.
8.1 In view of above, the amount of 40% penalty deposited by the appellant Insurance Company, which was invested in cumulative FDR by order dated 26.11.2007 passed by this Court, is to be refunded to the appellant Insurance Company alongwith interest accrued on it and remaining amount, if any, lying with the learned Commissioner, is to be disbursed in favour of the original claimant through RTGS/NEFT, after due verification.
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9. Accordingly the appeal is party allowed. No order as to costs.
10. Record and proceedings, if any, be sent back to the concerned Court forthwith.
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