United India Insurance Co. Ltd. vs Fahmida Begum Wd/O Mohammad Khan ...
2004 Latest Caselaw 690 Bom

JUDGMENT

Anoop V. Mohta, J.

1. Heard.

This appeal has been preferred by the original Non-applicant No. 2/Appellant herein/United India Insurance Co. Ltd. (for short "the Insurance Company") and thereby, challenged the order dated 9th March, 1989 passed by the Commissioner under the Workmen's Compensation Act, 1922 (for short "WC Act") in W.C.A. Case No. 89/1988, whereby, the original Non-applicant Nos. 1 and 2, appellants herein, and respondent No. 5 have been directed to pay Rs. 40,000/- as compensation to the applicants. It is also observed that the amount of compensation of Rs. 30,000/- shall carry interest @ 6% per annum from 30th May, 1982 till the amounts are actually paid to the applicant as per this order.

2. On 13th May, 1984 at about 9.00 a.m. the vehicle No. MTG 3901 driven by one Ahmed Khan, met with an accident and Ahmed Khan died. The original applicants are mother, sisters and brother of the said deceased. The respondent No. 5 is the owner of the said vehicle. The vehicle was admittedly insured with the appellant. As the deceased Ahmed Khan was under employment, an application under the W.C. Act was filed. The evidence was led by the parties. There was no serious defence so far as owner is concerned. No evidence was led by the owner. Therefore, considering the merits of the matter the impugned award was passed.

3. The learned Advocate appearing for the Insurance Company, basically contended that they are not liable for penalty as awarded in para No. 13 of the impugned order. Therefore, the Apex Court in its decision as , Ved Prakash Garg v. Premi Devi and Ors. considered the scheme of the Section 4 and 4-A including payment of compensation, interest and penalty for default. The relevant observations are as under :

"As a result of the aforesaid discussion it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmen's Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section 4-A Sub-section (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4-A(3)(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone."

4. After considering in details the said provisions in above para the conclusion clinches the issue so far as penalty part is concerned. In view of this there is no resistance from the advocates appearing for respondent Nos. 1 to 3 also.

5. The learned counsel appearing for the respondents, however, relied on 2000 ACJ 467, Oriental Insurance Co. Ltd. v. Satvir Singh and Anr.. The relevant para Nos. 8 and 9 are reproduced as under :

"8. Mr. Gupta also submitted that the insurer was not liable to pay the penalty, if that be so, the appellant may proceed against the employer to recover the amount paid to the workman on that account. However, no ground for interference with the amount awarded to the respondent is made out.

9. Whatever be the technicalities, the fact remains that the respondent workman who was only 35 years old at the time of the accident had become totally blind. The amount of compensation awarded to him is hardly enough to compensate him adequately for the misery that he would suffer for the rest of his life. The order passed by the Commissioner is absolutely just and fair. It calls for no interference."

The basic argument is that in view of the fact that the accident took place some time in the year 1984 and now it will be difficult for them to recover the amount of penalty from the owner of the vehicle. The learned counsel appearing for the appellant, however, pointed out that it was specifically directed and ordered while granting interim stay on 4-12-1989, that the parties to withdraw the amount subject to furnishing security on the interest and penalty amount as granted. The learned Advocate appearing for the respondent Nos. 1 to 4 contended that accordingly they have withdrawn the said amount.

6. There is no challenge to the interest part. It is the Joint liability, as ordered against the Non-applicant Nos. 1 and 2 i.e. the appellant and Respondent No. 5 herein. Therefore, so far as interest is concerned there is no need to interfere. So far as penalty is concerned, I am of the view and as relied by the respondent's Advocate in Oriental Insurance Co.'s case and as reproduced above the Insurance Company may proceed against the owner as admittedly, those liabilities are directed against the all Non-applicants jointly. However, so far as the penalty is concerned, as already observed above, the appellant is not at all liable to pay the same. The fact that the amount was deposited by the appellant and the same was withdrawn already by furnishing security, that also justify to maintain that entitlement. In my view, it will be difficult for the respondent now to recover the said money from the owner of the vehicle. However, liberty is granted to the appellant to recover and to take appropriate steps against the owner of the vehicle in the facts and circumstances of the case.

7. The learned Advocate for the appellant fairly contended that in such case it will be appropriate if the Commissioner under the Workmen's Compensation Act is directed to issue Recovery Certificate for recovery of the penalty amount against the Respondent No. 5/owner of the vehicle. To this the counsel for respondent Nos. 1 to 4 has no objection. According to me also, looking to the facts and circumstances of the case, it will be appropriate that the Commissioner under the Workman's Compensation Act to issue appropriate Recovery Certificate within the provisions of law.

In view of this the appeal is partly allowed and disposed of accordingly.

No order as to costs.