Chattisgarh High Court
Vishwajeet Singh Gupta vs Mohd. Jameel Khokar on 20 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1464 of 2018
Vishwajeet Singh Gupta S/o Jitendra Singh Gupta Aged About 35 Years R/o
Baniya Para Durg, District- Durg, Chhattisgarh
---- Appellant
Versus
1. Mohd. Jameel Khokar S/o Mohd. Nashruddin Khokar Aged About 47 Years R/o
Luchkipara Durg, District- Durg, Chhattisgarh
2. Smt. Hamida Begum W/o Mohd. Jameel Khokar Aged About 43 Years R/o
Luchkipara Durg, District- Durg, Chhattisgarh
3. Mohd. Altaf Khokar S/o Mohd Jameel Khokar R/o Luchkipara Durg, District-
Durg, Chhattisgarh
4. Nagma Bano D/o Mohd Jameel Khokar Aged About 17 Years Through Mohd.
Jameel Khokar (Father) R/o Luchkipara Durg, District- Durg, Chhattisgarh
5. Mohd. Ameen Khokar S/o Mohd. Jameel Khokar Aged About 14 Years Through
Mohd. Jameel Khokar (Father), R/o Luchkipara Durg, District- Durg,
Chhattisgarh
6. Najma Bano D/o Mohd. Jameel Khokar Aged About 10 Years Through- Mohd.
Jameel Khokar (Father), R/o Luchkipara Durg, District- Durg, Chhattisgarh......
(Claimants)
7. National Insurance Company Ltd Through Branch Manager, Butani Complex,
G.E. Road, Akash Ganga, Power House, Bhilai, G.E. Road, District- Durg,
Chhattisgarh....(Insurer)
---- Respondents
For Appellant : Mr. P. R. Patankar, Advocate
For Respondent No.7 : Mr. R. N. Pusty, Advocate
Hon'ble Mr. Justice P. Sam Koshy
Order on Board
20/10/2022
1. The instant is an appeal by the employer under Section 30 of the Employees
Compensation Act.
2. The appeal stood admitted vide order dated 10.09.2018 with following
substantial question of law :
"Whether the learned Commissioner for Employees Compesation-cum-
Labour Court, Durg, was justified in directing to pay the interest on the
awarded amount of the compensation to the employer/appellant from
14.05.2014, while exercising the powers enumerated under Section 4-
A(3)(a) of the Employee's Compensation Act, 1923?"
3. Given the said substantial question of law, all that this Court now needs to
decide is whether the Commissioner for Employees Compensation-cum-Labour
Court, Durg was justified in fastening the liability of compensation upon the
employer when the substantial payment of compensation has been fastened
upon the insurance company.
4. In the recent past this Court in MAC No. 877 of 2018 on identical set of facts
had decided the issue in favour of the employer holding that the payment of
interest part would be upon the insurance company and it is only the payment
of penalty, if any, that could be fastened upon the employer.
5. The decision of this Court was relied upon by the two decisions of Supreme
Court in the case of Ved Prakash Garg V. Premi Devi and Others, (1997) 8
SCC 1 and also in the case of Kamla Chaturvedi V. National Insurance
Company Limited & Ors., (2009) 1 SCC 487.
6. In view of the aforesaid authoritative decision of this Court on an identical issue,
the present appeal also deserves to be and is accordingly allowed to the
aforesaid extent and it is ordered that liability of payment of compensation shall
also be that upon the insurance company, rather than that on the employer as
has been awarded by the Commissioner.
7. Contention of the learned counsel for the insurance company is that there ought
to had been terms of contract itself at the time of issuance of the policy dealing
with the interest and penalty part.
8. Learned counsel for the insurance company also referring to the judgment of
the Hon'ble Supreme Court in the case of Kamla Chaturvedi(Supra) referred to
paragraph 6 and tried to submit that though there is a policy issued by the
respondent insurance company but the insurance company should had been
provided for sufficient opportunity to substantiate its contention as to whether
certain exceptions were carved out or not while issuance of policy for matters
other than those arising out of the Motor Vehicles Act. Therefore, he prayed for
remanding of the matter seeking permission to the insurance company enabling
them to adduce sufficient evidence in this regard.
9. This Court would not accept the said contention of the learned counsel for the
insurance company for the reason that in spite of the said contention having
been raised in the W.S. before the Commissioner, no substantial evidence in
this regard has been brought on record. Further, issuance of the policy is not in
dispute. Even today when the matter is taken up the insurance company has
not been able to categorically show the exception which has been carved out,
from the policy that has been issued indemnifying the appellant employer
10. In the absence of any such material available both in the proceedings before the
Commissioner and also in the present appeal, the said contention of the
insurance company cannot be sustained at this juncture. Hence, the instant
appeal also deserves to be and is accordingly allowed in terms of the order
passed by this Court on 27.09.2022 in the case of Gyan Chand Malkani V.
Chetan Sahu & Another in MAC No. 877 of 2018 the appeal stands allowed to
the aforesaid extent. The insurance company is directed to ensure that the
payment of interest in terms of the award of the Commissioner be deposited at
the earliest preferably within a period of two months from the date of receipt of
copy of this order.
11. As regards, the decision of this Court in spite of the liability being fastened upon
the insurance company, however, the right of the insurance company stands
reserved to raise the issue of payment of interest in another appropriate
proceedings before the Commissioner where they would be able to substantiate
their contention on this point.
Sd/-
(P. Sam Koshy)
Judge
Rohit
