Judgment:
Karnik D.G., J.
1. Heard.
2. This appeal is directed against the judgment and order dated 5th September, 1992 passed by the Commissioner for Workmens' Compensation and Judge, Labour Court, Ahmednagar (for short the trial Court) directing the respondent No. 3 owner of the truck and the appellant Insurance Company to pay to the respondent Nos. 1 and 2 compensation for death of a workman and further directing them to pay the penalty, for delay in payment.
3. The brief facts of the case are that respondent No. 3 is the owner of a motor vehicle which is a goods truck bearing Registration No. MWA 5079. The truck was insured by respondent No. 3 with the appellant. The truck met with an accident on 30th August, 1988 and Mr. Baban Somase, an employee of the respondent died in the accident.
4. The respondent Nos. 1 and 2 who are the widow and the daughter of Baban filed a claim for compensation before the Commissioner under the Workmens' Compensation Act and the First Labour Court, Ahmednagar. According to respondent Nos. 1 and 2, Baban was employed by the respondent No. 3 as a second driver cum cleaner on the truck. At the relevant time of the accident, Baban was travelling in the truck as a cleaner. It is the case of respondent Nos. 1 and 2 that death occurred during the course of employment of respondent No. 3 and therefore, respondent No. 3 and the appellant Insurance Company are liable for payment of compensation under the Workmens' Compensation Act.
5. The appellant denied that Baban was employed as a second driver cum cleaner. According to the appellant, Baban was travelling in the truck as a gratituous passenger at the relevant time. As the appellant had not covered the liability for the gratituous passengers under the insurance policy the appellant was not liable for payment of compensation.
6. After consideration of the evidence adduced by the parties, the trial Court held that Baban was employed by the respondent No. 3 and he died in an accident arising out of and in the course of employment. The respondent Nos. 1 and 2 were accordingly held to be entitled to the compensation. The trial Court further held that in view of delay in payment of compensation, the appellant and the respondent No. 3 were liable to pay penalty to the extent of 50% of the compensation under Section 4(1) of the Workmens' Compensation Act and accordingly passed the award. That award is impugned in this appeal.
7. Though some other points like dependency of respondent Nos. 1 and 2 and the limitation were raised before the trial Court, they were not canvassed before me. Only two points were canvassed before me to the effect that Baban had not died in the course of employment and that the insurance company was not liable to pay the penalty which was payable only by owner/Respondent No. 3 In view of this, following points arise for my determination:
i) Whether trial Court was right in holding that deceased Baban died in an accident during the course of employment?
ii) Whether appellant is liable to pay the penalty for the delay under Section 4(A) of the Workmens' Compensation Act?
8. Regarding point No. 1 : Respondents examined respondent No. 1 the widow of the deceased. She deposed that accident took place on 30th August, 1988 and her husband died in the accident. She further deposed that her husband was working as a driver with respondent No. 3 on his truck. The accident took place while he was on duty and in the course of the employment. The respondent No. 3 in his written statement admitted that the deceased was in his employment. He had also issued a certificate which states that deceased Baban was working with him on his truck bearing registration No. MWA 5079 as a second driver-cum-clearner. In view of clear admission on the part of respondent No. 3/owner of the truck and positive statement made on oath by the respondent No. 1 that her husband was working as a driver with respondent No. 3 it must be held that respondent No. 1 had proved that her husband was working with respondent No. 3 as the Driver cum cleaner. He was travelling as a cleaner in the said truck at the relevant time. Except for an assertion in its written statement that deceased Baban was travelling as a gratituous passenger, the appellant has not produced any evidence in that regard. Learned Counsel for the appellant sought to rely upon the charge sheet filed in a criminal case and statements of witnesses accompanying the charge sheet. The witnesses whose statements were filed along with the charge sheet in the Criminal Court were not examined as the witnesses before the trial Court. The statements made before the police as also averments made in the charge sheet are not clearly admissible in evidence and have rightly not been relied upon by the trial Court. In any event, in view of the positive evidence adduced by respondent No. 1 and admission by respondent No. 3,I find no error in the findings recorded by the trial Court in holding that Baban was employed by the respondent No. 3 and died during the course of the employment.
9. Regarding Point No. 2 : In (Ved Prakash Garg v. Premi Devi and Ors.) reported in : AIR1997SC3854 , the Supreme Court has held that the Insurance Company is not liable for payment of the penalty which is imposed on the employer for non-payment of compensation on time under the Workmens' Compensation Act. In view of the law which is now well settled by the decision of the Supreme Court, it must be held that the appellant is not liable for payment of the penalty. Liability of the penalty is only of the employer, i.e. the respondent No. 3. Learned Counsel for respondent No. 3 did not dispute this position, in view of the decision of the Supreme Court. In the circumstances, that part of the award which directs the appellant to pay the penalty needs to be modified. Hence, I pass following order:
ORDER
The appeal is partly allowed. The direction by the Commissioner for Workmens' Compensation directing the respondent No. 3 to pay to respondent Nos. 1 and 2 an amount of Rs. 1,33,420/- (inclusive of 50% penalty) is maintained. It is further directed that out of this amount of Rs. 1,33,420/- the appellant shall be liable to pay, jointly and severally along with respondent No. 3, an amount of Rs. 88,848/- (exclusive of the penalty) to respondent Nos. 1 and 2. Directions by the Commissioner for Labour, directing the appellant and respondent No. 3 to pay interest at the rate of 6% per annum in case of failure to pay the amount within two months from the date of his order is also maintained as the same is not challenged before me. When the order of payment of compensation was passed, respondent No. 2 was minor and, therefore, the amount was directed to be deposited in a nationalized bank. The respondent No. 2 has now attained majority. The amount should therefore be paid to the respondents 1 and 2 forthwith. The amount, if any, already paid by the appellants and respondent No. 3 shall be given credit to.