A.B. Pal, J.
1. The judgment and award dated 5.8.1998 passed by learned Commissioner, Workmen's Compensation, West Tripura, Agartala in T.S.(W/C) 40 of 1996 imposing a penalty of Rs. 51,995 on the owner of the offending vehicle have been called in question in the present first appeal.
2. The brief fact leading to the present proceeding originates from a motor accident in which one Subal Das, the husband of the claimant-respondent Smti. Ratna Das died. The deceased was the driver of the vehicle TRL-2626 (Truck) owned by the second appellant herein. After his death in the accident on 27.7.1996, the proceeding before the learned Commissioner was initiated at the conclusion of which an amount of Rs. 2,07,980 was awarded. The vehicle being insured with the Oriental Insurance Co. Ltd., the Commissioner directed the said insurance company to indemnify the owner. The learned Commissioner further directed that the said amount would carry interest @ 12% per annum from the date of accident. Thereafter, the learned Commissioner imposed a penalty of Rs. 51,995 being 25% of the compensation awarded on the owner to be deposited with the State Government within two months from the date of judgment impugned herein. Aggrieved, the owner has preferred the present appeal.
3. I have heard Mr. A.K. Deb, learned Counsel for the appellants and Mr. P. Gautam, learned Counsel for the respondents.
4. The first contention of Mr. Deb, the learned Counsel for the owner appellant is that Section 10 of the Workmen's Compensation Act (for short 'Act') provides that no claim for compensation shall be entertained by a Commissioner unless notice of the accident is given in the manner hereinafter provided. Fifth proviso to Sub-section (1) of Section 10 of the Act provides as follows:
Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause.
Mr. Deb submits that admittedly the claimant-respondent did not issue any notice in terms of Sub-section (1) of Section 10 of the Act and the learned Commissioner has not recorded any reason for entertaining the claim without notice and this being the position, the entire proceeding was vitiated. In para 12 of the impugned judgment, the learned Commissioner has dealt with the question of penalty, which is quoted below:
12. It may be mentioned here that the owner was asked to show cause as to why a penalty should not be imposed upon him as per provision of Section 4A Sub-section 3(b). The owner has not filed any reply of show cause notice. Hence I find that there was no justification for the owner for making delay of payment of compensation. Therefore, it is found that the owner, O.P. No. 3, is liable to pay penalty as per Section 4A Sub-section 3(b) of the Workmen's Compensation Act, 1923. Accordingly, it is ordered that the owner namely Sri Amal Gon s/o Sri Rabindra Ch. Gon shall pay a penalty of Rs. 51,995 (Rupees fifty-one thousand nine hundred ninety-five only) being 25% of the compensation award to the State Government within two months from the date of this judgment.
5. The controversy raised in this appeal being limited to the question of penalty, the relevant provision contained in Section 4A of the Act is quoted below:
4A. Compensation to be paid when due and penalty for default. - (1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the event of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-
(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette on the amount due; and
(b) If in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty:
Provided that an order for the payment of penalty shall not be passed under Clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.
6. It is settled legal position that the claim becomes due on the date of accident. Nowhere it has been provided that if a notice is not given in terms of Section 10, the employer stands absolved from the statutory liability to pay at least the provisional amount as contemplated in Sub-section (2) of Section 4A. The learned Commissioner has recorded that the owner was asked to show cause as to why the penalty should not be imposed upon him as per provision of Sub-section 3(b) of Section 4A of the Act. But he failed to submit any reply. In such a situation, the mandatory provision in Section 4A(3)(b) is that the Commissioner shall direct the employer to pay a further sum not exceeding fifty per cent of such amount by way of penalty. It is the owner, who was at fault for not showing cause leaving the learned Commissioner with no alternative but to pass the order of penalty.
7. It is noticed that learned Commissioner directed, in para 12 of his judgment, to the owner to pay the penalty to the State Government. This direction is apparently wrong being contrary to Sub-section (3A) of Section 4A which provides as follows:
(3A) The interest and penalty payable under Sub-section (3) shall be paid to the workman or his dependent, as the case may be.
The said direction is, therefore, modified to the extent that the amount of penalty shall be payable to the dependent of the workman, the first respondent herein within two months from today. As per direction in the impugned judgment, the said penalty of Rs. 51,995 was to be paid by the owner within two months from 5.8.1998 when the decision was pronounced. The appellants obtained a stay of that direction from this Court on 11.11.1998 and they could avoid the payment for more than seven years. Failure on their part to pay within two months from today as directed above would make them liable to pay interest on the said amount of penalty at the rate of 6% per annum from 5.10.1998, two months from the date of impugned judgment.
8. For the reasons and subject to the observations noted above, I do not find any illegality or legal infirmity in the impugned judgment of the learned Commissioner rendering a direction that the owner appellant herein shall pay the penalty and for that reason. I am not inclined to interfere with the same except the modification indicated above.
9. Accordingly, this first appeal stands dismissed with no order as to cost.