Gujarat High Court
The New India Assurance Company Limited vs Smt. Kunwarbai Hamirbhai Chavda on 6 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4211 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
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THE NEW INDIA ASSURANCE COMPANY LIMITED
Versus
SMT. KUNWARBAI HAMIRBHAI CHAVDA & ORS.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR HARSHAD K PATEL(2844) for the Defendant(s) No. 1,2,3
RULE SERVED BY DS for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 06/05/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant-New India
Assurance Company Limited against the judgment and
award dated 01.03.2006 passed by the learned
Commissioner for Workmen's Compensation at Kutch-
Bhuj in Workmen's Compensation Case (Fatal) No.4 of
2001, whereby the learned Commissioner has awarded
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compensation of Rs.4,15,960/- with 50% penalty and
interest @ 12% in favour of original claimants.
2. The short facts giving rise to present appeal are as
under:-
2.1 The deceased was serving as driver of the Truck
bearing registration No. GJ-12-V- 6244 with respondent
No.4 herein i.e. M/s. Cargo Conveyors. On 01.08.2000,
the deceased was on duty and was proceeded towards
Gandhidham. When the truck reached near Limbadi, at
that time, the deceased had felt nervousness in chest and
therefore, he had stopped the truck on side for taking
rest and then suddenly he died on the spot. Therefore,
present respondent Nos. 1 to 3 being legal heirs of the
deceased - driver had filed the Workmen's Compensation
Case being Workmen's Compensation Case (Fatal) No.4
of 2001 before the learned Commissioner for Workmen's
Compensation whereby, the learned Commissioner has
awarded compensation of Rs.4,15,960/- with 50% penalty
and interest @ 12% in favour of present respondent Nos.
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1 to 3.
2.2 In view of the above facts, the insurance company has
filed present appeal.
3. I have heard Mr. G.C. Mazmudar, learned advocate
with Mr. H.G. Mazmudar, learned advocate for the
appellant - insurance company and Mr. Hardhad Patel,
learned advocate for the respondent Nos. 1 to 3. Though
served, respondent Nos. 4 - M/s. Cargo Conveyor has
chosen not to remain present before this Court. With
consent of the learned advocates appearing for both the
sides, the appeal is taken up for final disposal today.
4. Learned advocate for the appellant has submitted
that present appeal is filed mainly on the ground that the
learned Commissioner has not properly appreciated the
facts of the case and thereby, the learned Commissioner
has committed an error while passing the impugned
judgment and award. He has also submitted that the
impugned award is erroneous, illegal, unjust and the
same may be quashed and set aside or the same may be
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appropriately modified. He has vehemently submitted
that while passing the impugned award, the learned
Commissioner has committed serious error of law and on
facts both. He has submitted that respondent Nos. 1 to 3
herein have failed to prove the income of the deceased, as
it was prayed before the learned Commissioner. He has
also submitted that the learned Commissioner has not
considered the fact that the liability to pay the penalty is
on the concerned employee, however, learned
Commissioner has committed serious error of law by
directing the insurance company to pay 50% penalty to
the claimants over and above the amount of
compensation. He has also submitted that learned
Commissioner has committed serious error in awarding
interest @ 12% instead of 9%.
4.1 Mr. Mazmudar, learned advocate for the appellant
urges before the Court that present appeal may be
allowed and the impugned award passed by
Commissioner for Workmen's Compensation may be
quashed and set aside or the same may be appropriately
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modified.
4.2 Mr. Mazmudar, learned advocate for the appellant-
insurance company has relied upon the judgment of
Hon'ble Apex Court in case of New India Assurance Co.
Ltd. vs. Harshadbhai Amrutbhai Modhiya and
another reported in (2006) 5 SCC 192 and more
particularly paragraph Nos.12, 13, 14, 15 and 17 which
read as under:-
"12. Section 8 stipulates the manner in which the
amount of compensation would be distributed. Sub-
section (4) of Section 8 reads as under:
"8. (4) On the deposit of any money under sub-
section (1), as compensation in respect of a
deceased workman the Commissioner shall, if
he thinks necessary, cause notice to be
published or to be served on each dependant
in such manner as he thinks fit, calling upon
the dependants to appear before him on such
date as he may fix for determining the
distribution of the compensation. If the
Commissioner is satisfied after any inquiry
which he may deem necessary, that no
dependant exists, he shall repay the balance of
the money to the employer by whom it was
paid. The Commissioner shall, on application
by the employer, furnish a statement showing
in detail all disbursements made."
13. Section 12 of the Act provides for the mode and
manner of payment of compensation by a principal
employer and/ or his contractor. Section 17 of the Act
nullifies contracting out in the following terms:
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"17. Contracting out.- Any contract or
agreement whether made before or after the
commencement of this Act, whereby a
workman relinquishes any right of
compensation from the employer for personal
injury arising out of or in the course of the
employment, shall be null and void in so far as
it purports to remove or reduce the liability of
any person to pay compensation under this
Act."
14. By reason of the provisions of the Act, an employer is
not statutorily liable to enter into a contract of
insurance. Where, however, a contract of insurance is
entered into by and between the employer and the
insurer, the insurer shall be liable to indemnify the
employer. The insurer, however, unlike under the
provisions of the Motor Vehicles Act does not have a
statutory liability. Section 17 of the Act does not provide
for any restriction in the matter of contracting out by the
employer vis-`-vis the insurer.
15.The terms of a contract of insurance would depend
upon the volition of the parties. A contract of insurance
is governed by the provisions of the Insurance Act. In
terms of the provisions of the Insurance Act, an insured
is bound to pay premium which is to be calculated in the
manner provided for therein. With a view to minimize
his liability, an employer can contract out so as to make
the insurer not liable as regards indemnifying him in
relation to certain matters which do not strictly arise out
of the mandatory provisions of any statute. Contracting
out, as regards payment of interest by an employer,
therefore, is not prohibited in law.
17. Yet again in L.R. Ferro Alloys Ltd. (supra), this Court
opined that if an amount of compensation is not
deposited within a period of one month, the insurance
company shall be liable to reimburse the owner only the
amount of compensation with interest therefrom but not
the penalty imposed on insurer employer for default of
payment of amount stating:
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"5. The only contention put forth before us is
that the entire liability including penalty and
interest will have to be reimbursed by the
insurance company and this aspect has not
been examined by the learned Single Judge in
the High Court and needs examination at our
hands. In Ved Prakash Garg v. Premi Devi this
Court after examining the entire scheme of the
Act held that payment of interest and penalty
are two distinct liabilities arising under the
Act, while liability to pay interest is part and
parcel of legal liability to pay compensation
upon default of payment of that amount within
one month. Therefore, claim for compensation
along with interest will have to be made good
jointly by the insurance company with the
insured employer. But, so far as the penalty
imposed on the insured employer is on account
of his personal fault the insurance company
cannot be made liable to reimburse penalty
imposed on the employer. Hence the
compensation with interest is payable by the
insurance company but not penalty. Following
the said decision and for the reasons stated
therein, we modify the order made by the High
Court to that extent. The appeal is allowed in
part accordingly."
4.3 Mr. Mazmudar, learned advocate for the appellant-
insurance company has also relied upon the decision of
this Court in case of Gautam Tansport, Bhavnagar vs.
Jiluben Huseinbhai and others reported in 1989 ACJ
587 and more particularly, paragraph No. 5 which reads
as under:-
"5. Mr. Damani tried to refer to section 95 of the
Motor Vehicles Act for substantiating his argument
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that the insurance company would be responsible
for indemnifying the insured for the liability under
the Workmen's Compensation Act as well. The
provision would not be relevant for the purpose of
this matter and even if we were to hold that for
determining the conditions of the policy, section 95
of the Motor Vehicles Act can be looked into, then
also the clear fact that the contract of insurance is
a contract of indemnity cannot be lost sight of.
The insurance company while issuing an
insurance policy only assures that it shall
indemnify the assured for all liability which might
be springing from the type of risk covered by the
insurance policy issued by it. The liability for the
penalty arises on account of clear violation of the
statutory provisions of the Workmen's
Compensation Act and the insurance company
cannot be saddled with the responsibility of
indemnifying the assured if the assured acts in
clear violation of a statutory requirement. The
contract of indemnity also necessarily postulated
that the person indemnified has to act in a way in
which the damages are mitigated. If by his
negligence, he incurs an additional responsibility
for having violated the statutory requirements,
then the insurance company cannot be asked to
indemnify blanket licence to the assured for
violating the statutory requirement and in some
unforeseen cases, it might even land us in a
situation where the assured and the claimant may
join hands to fleece the indemnifier, i.e., the
insurance company, of a sizeable amount. Such
could never be the intention of the provision in the
Workmen's Compensation Act or the Motor
Vehicles Act,so far as the insurance policy,viz., the
contract of indemnity is concerned. Under the
circumstances we do not find any substance in the
present appeal which requires to be dismissed at
the admission stage. Though it is not relevant, it
may be stated that one of us (Gheevala J.), while
deciding First Appeal No. 349 of 1983, by an order
dated August 12, 1983, had taken the same view.,
viz., that for the amount of penalty, the insurance
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company cannot be held responsible. We do not
see any reason to deviate from that view because
there is no reason for such deviation,but rather
there is everything in the statute to support the
same."
5. Per contra, Mr. Hardhad Patel, learned advocate
appearing for the respondent Nos. 1 to 3 has strongly
opposed the appeal and submitted that any substantial
question of law is not involved in present appeal, as
envisaged under Section 30 of the Workmen's
Compensation Act and therefore, present appeal itself is
devoid of any merits and the same may be dismissed. He
has also submitted that the learned Commissioner has
after considering the list of documentary evidence and
after considering the contentions advanced by both the
sides, passed impugned judgment and award in favour of
present respondent Nos. 1 to 3 and therefore, no
interference is required to be called for in present appeal.
He has also submitted that there is no infirmity or
illegality in the impugned judgment and award passed by
the learned Commissioner and hence, present appeal may
not be entertained an the same may be dismissed.
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6. However, Mr. Patel, learned Counsel for the
respondent Nos. 1 to 3 is unable to canvass the
submission on the ground of liability to pay the penalty by
the insurance company, as it is contractual relationship
between the insurer and employer. Mr. Patel, learned
counsel for the respondent Nos. 1 to 3 is not able to
controvert the said fact discussed by the Hon'ble Apex
Court in the above referred judgment. Lastly, Mr. Patel,
learned counsel for respondent Nos. 1 to 3 submits that
since the original claimants have lost the sole
breadearner of the family before about 25 years, the
Court may appropriately modify the impugned judgment
and award passed by the learned Commissioner.
7. I have perused the material and documents available
on record as well the record and proceedings. I have also
gone through the impugned judgment and award passed
by the learned Commissioner.
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8. This Court on 13.04.2007 passed below mentioned
order:-
"Heard learned advocates appearing on behalf of the
respective parties. In the facts and circumstances of the
case, ad-interim relief granted earlier is made absolute
with a modification that the respondents No. 1 to 3
herein, original-claimants are permitted to withdraw
25% of the amount deposited by the applicant. The
learned Workmen's Compensation Commissioner is
directed to make payment of 25% of the amount by an
Account Payee cheque only in favour of respondent No.1
and is directed to see that the said amount is paid only
to respondent No.1. So far as the balance amount of
75% deposited by the applicant is concerned, the
learned Workmen's Compensation Commissioner is
directed to invest/deposit the said amount in any
Nationalized Bank initially for a period of 5 years in the
name of the Registrar/Nazir of the Court/Tribunal.
However, the original-claimants would be entitled to
periodical quarterly interest on the said deposit. There
shall not be any loan and/or advance on the said deposit.
Rule is made absolute to the aforesaid extent with no
order as to costs."
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
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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
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
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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.
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20. Illustratively, in North - East Karnataka Road
Transport 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 &
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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 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?
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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:-
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"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 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
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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
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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.
16. So far as the liability to pay 50% penalty is
concerned, in view of the above referred judgments, I am
of the opinion that the insurance company is not liable to
pay 50% amount of liability. So far as rate of interest part
is concerned, the learned Commissioner has failed to
award rate of interest, as per Workmen's Compensation
Act. Hence, considering the facts and circumstances of
the case and in view of the above referred judgment, I am
of the opinion that the rate of interest is required to be
modified from 12 % to 9 % p.a. from the date of
application till realization of the award.
17. In view of the above facts and the observations made
by Hon'ble Apex Court in the above referred judgment, I
am of the opinion that present appeal requires to be
allowed in part and the impugned judgment and order is
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required to be modified.
18. For the foregoing reasons and in view of the
observations made by Hon'ble Apex Court in above
referred judgment, the concerned authority shall disburse
the amount of compensation Rs. 4,15,960/- in favour of
the original claimants i.e. respondent Nos. 1 to 3 herein
after verifying the bank details of the claimants with 9%
interest p.a. from the date of application till realization of
the award by A/c payee cheque or R.T.G.S.
19. If the insurance company has already deposited the
amount with 12% interest, then in that case, after
deducting the difference of the interest amount,
remaining interest accrued on the Fixed Deposit and the
penalty amount, if deposited, be refunded to the
insurance company by A/c payee cheque or R.T.G.S. after
due verification.
20. So far as amount of penalty is concerned, it is open
for respondent Nos. 1 to 3 to recover the amount of
penalty i.e. Rs. 2,07,980/- from respondent No.4 i.e. M/s.
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Cargo Conveyors by way of initiating appropriate
proceedings.
21. In view of the aforesaid the impugned judgment and
award dated 01.03.2006 passed by the learned
Commissioner for Workman's Compensation at Kutch-
Bhuj in Workman's Compensation Case (Fatal) No.4 of
2001, is hereby modified to the aforesaid extent.
22. Accordingly the appeal is party allowed. No order as
to costs.
23. The record and proceedings, if any, be sent back to
the concerned tribunal forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
