Rashid Khan S/O Gous Khan vs Kashinathrao Bhendarkar And Anr
2016 Latest Caselaw 459 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                        
                                   FIRST APPEAL NO. 62 OF 2016

     1.       Rashid Khan s/o Gous Khan,
              Age 68 years,
              Occ. Driver at present nil,




                                                       
              R/o Kandhar,
              District Nanded.                                   ... Appellant

              Versus




                                            
     1.       Kashinathrao s/o Bhendarkar,
              Age Major, Occ. Transport business,
                             
              R/o Kandhar, Taluka Kandhar,
              District Nanded.

     2.       The Manager,
                            
              United India Insurance Corporation
              Branch Nanded
              Near Malpani Building,
              Vazirabad,
              Nanded.                                            ... Respondents
      
   



                                         .....
       Advocate for Appellant : Mrs. Smita K. Nagarkar h/f Mr. K. M. Nagarkar
            Advocate for Respondent No. 1 : Mr. Pathan Hamzakhan I.
               Advocate for Respondent No. 2 : Mr. V. R. Mundada





                                         .....

                                                    CORAM : V. K. JADHAV, J.

DATED : 9th MARCH, 2016

JUDGMENT:-

1. Admit. By consent of parties, taken up for final disposal

forthwith.

2. Being aggrieved and dissatisfied with the judgment and award

dated 26.2.2010, passed by the learned C.J.S.D. Nanded in

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W.C.N.F.A No. 1 of 1987, the appellant-original petitioner has

preferred this appeal.

3. Brief facts giving rise to the present appeal are as follows:-

Undisputedly, respondent No.1 was the owner of matador

bearing registration MTB-7330 on the date of accident i.e. on

1.7.1986, and the said matador was insured with respondent No.2-

Insurance Company. The appellant-petitioner was in the employment

of respondent No.1 and was working as a driver on the said matador.

On 1.7.1986, the said matador, being driven by the appellant-

petitioner from Kandhar to Nanded, met with an accident. In the said

accident, the appellant-original petitioner had sustained injuries to his

left eye. Even after long medical treatment, the appellant-petitioner

lost vision of his left eye and consequently, he is not able to drive any

vehicle. On the background of above facts, the appellant-petitioner

filed claim petition before learned C.J.S.D. Nanded. Learned

C.J.S.D., Nanded, by its judgment and order dated 26.2.2010,

allowed the petition with proportionate costs and thereby directed the

respondent jointly and severally to pay compensation of

Rs.4,27,140/- to the appellant-petitioner and further directed

respondent No.1 to pay simple interest @ 12% p.a. on the

compensation amount from the date of occurrence, so also, to pay

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penalty of Rs. 2,13,570/- to the appellant.

4. Learned counsel for the appellant submits that at the time of

incident, the appellant was 22 years of age and accordingly he filed

claim petition before the Court below by mentioning the same age.

However, learned Judge of the trial court, by placing reliance on the

medical certificate issued by the concerned doctor, wherein age of

the appellant is mentioned as 27 years, assessed the compensation

by considering age of the appellant as 27 years. In fact, Dr.

Sahastrabudhe had examined the appellant in the year 1997 and

accident had taken place in the year 1986. Learned counsel further

submits that learned C.J.S.D. Nanded has committed gross error of

law in directing respondent No.1 alone to pay penalty amount.

Learned counsel submits that both the respondents are jointly and

severally liable to pay penalty amount to the appellant. Learned

counsel for the appellant submits that learned Judge of the trial court

has not awarded interest on penalty amount. Respondent No.1 alone

is directed to pay the interest at the rate of 12% p.a. on the

compensation amount when respondent No.2, being the insurer of

vehicle involved in the accident, is also jointly and severally liable to

pay interest alongwith respondent No.1.

5. Learned counsel for respondent No.1 submits that the learned

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Judge of the trial court has rightly considered the age of appellant as

27 years on the date of accident. There is no documentary proof to

substantiate the contention of appellant that he was 22 years of age

at the time of accident. In criminal case, age of the appellant is

shown as more than 25 years at the time of accident. Respondent

No.2 is also liable to pay penalty jointly and severally alongwith

respondent No.1. Learned counsel for respondent No.1 submits that

respondent No.1 is not liable to pay interest alone on the

compensation amount, as awarded by learned Judge of the trial

court.

6. Learned counsel for respondent No.2-insurer submits that

penalty is leviable after show cause notice and considering

explanation of the employer, and the same is not automatic.

Insurance company cannot be held liable to reimburse the penalty

and burden of penalty is to be borne by the employer and not by the

insurance company.

Learned counsel for respondent No.2, in order to substantiate

his contentions, places reliance on the following judgments:-

1. Ved Prakash Garg vs. Premi Devi and others, reported in AIR 1997 SC 3854,

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2. New India Assurance Co. Ltd. vs. Harshadbhai Amrutbhai

Modhiya and another, reported in 2006 (8) LJSOFT (S.C.) 69

3. Smt. Kalpana Rajendra Kumawat and others vs. Vilas Dattu Fulwari and another, reported in 2015 (4) LJSOFT 34.

4. United India Insurance Co. Ltd. vs. Smt. Panchafula w/o Jaysingh and others, reported in 2012 (6) LJSOFT 237

5. United India Insurance co. Ltd. vs. Dattuji s/o Sonba Kodape

and others reported in 2010 (12) LJSOFT 210,

6. United Insurance Co. Ltd. vs. Sarsabai w/o Kishanrao Sontakke and others, reported in 2006 (5) Mah.L.J. 630 and

7. New India Assurance Co. Ltd. vs. Mohan Bhanudas Bansode and others, reported in 2005 (4) Mah.L.J. 158

Learned counsel further submits that the court below has

rightly considered the age of applicant-petitioner and correctly

worked out compensation as per the provisions of Workmen's

Compensation Act. Learned counsel submits that the impugned

judgment thus, calls for no interference and appeal is thus liable to

be dismissed.

7. Though the appellant, in the claim petition, filed in the year

1987, mentioned his age as 22 years, the same is disputed by

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respondent No.1-employer in the written statement while resisting the

claim before the court below. It was thus incumbent on the part of

applicant-petitioner to prove his age by placing relevant documents

on record. The appellant was having driving licence to drive the

vehicle, issued to him in the year 1986, and after the accident took

place, the same was cancelled in the same year. It is not disputed

that the driving licence is issued only after verifying the date of birth

etc. It appears that the petitioner has withheld the best evidence

available with him to claim the compensation by mentioning the age

as 22 years when the other side has denied the same. Even in

criminal case, wherein the petitioner was acquitted, his age is shown

more than 25 years of age. Dr. Sahastrabudhe, who has issued

certificate at Exh.138, has mentioned the age of appellant-petitioner

as 27 years. Thus, in absence of any documentary evidence, it is

difficult to say that the appellant-petitioner was 22 years of age at the

time of accident. Learned Judge of the trial court has thus rightly

considered that the petitioner was 27 years of age at the time of

alleged accident.

8. So far as the question of penalty is concerned, learned counsel

appearing for respondent No.2 has placed his reliance on various

judgments, as mentioned above. It is well settled that the burden of

payment of penalty is to be borne by the employer and not by the

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insurance company. It is held that the insurance company cannot be

held liable to reimburse the penalty. Thus, there is no substance in

the submission advanced by learned counsel for appellant that

respondent No.2 shall also bear the penalty as awarded by learned

Judge of the trial court.

9. So far as the direction to pay interest @ 12% p.a. on the

principal compensation amount is concerned, even in the cases on

which reliance is placed by learned counsel for respondent No.2, it is

held that the payment of interest under section 4-A (3) (a) is part of

statutory liability, which is legally required to be discharged by the

insured employer under the provisions of Workmen's Compensation

Act and the compensation alongwith interest is to be made good by

the insurance company jointly with the insured employer. Learned

counsel for the appellant has not shown any provisions, which permit

the court to grant interest on the penalty amount. In view of this, the

appeal is required to be allowed partly to that extent by holding

respondent Nos. 1 and 2 jointly and severally liable to pay simple

interest @ 12% p.a. on the compensation amount of Rs.4,27,140/- to

the appellant-petitioner from the date of occurrence of the incident.

The rest of the impugned judgment and award is required to be

confirmed. Hence, the following order:-

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ORDER

I. The appeal is hereby partly allowed.

II. The judgment and award dated 26.2.2010 passed by the

learned Civil Judge, Senior Division, Nanded in W.C.

N.F.A. No. 1 of 1987 is modified to the extent that the

respondent Nos. 1 and 2 shall jointly and severally pay

simple interest at the rate of Rs.12% p.a. on the

compensation amount of Rs.4,27,140/-. Rest of the

judgment and award stands confirmed.

              III.    Award be drawn up accordingly.
   



              IV.     First appeal is disposed of in the above terms. In the

circumstances, there shall be no order as to costs.

( V. K. JADHAV, J.)

rlj/