V.G. Munshi, J.
1. First Appeal No. 110 of 1992 is directed by appellant (claimant), under Section 30 of Workmen's Compensation Act, 1923, feeling aggrieved by the judgment and award passed by the Civil Judge, Senior Division, Nanded (Ex Officio Commissioner), on 7.1.1992 in W.C.F.A. No. 9 of 1987.
2. The important facts of the case may be briefly stated as under:
Appellants (original claimants) are the parents of the deceased Palsing. He then worked as a cleaner on the truck bearing No. MTG 1884 and, his monthly salary was Rs. 300. The said truck was owned by respondent No. 1 and was insured with respondent No. 2. The said truck met with an accident on 20.1.1987. One Gurunam Singh was driving the truck. When the truck reached near Narsi Road junction, it met with an accident. The deceased did sustain severe injuries and succumbed to those injuries, on the spot. The appellants (original claimants), therefore, holding the respondents, owner and insurer of the said truck, liable claimed the amount of compensation by sending notice. As the notice was not complied with, appellants were compelled to file the present petition before Commissioner for Workmen's Compensation, Nanded and claimed amount of compensation, together with amount of penalty and interest.
3. The respondent Nos. 1 and 2, by filing their written statements, strongly opposed the claim made in the petition on number of grounds.
4. The learned Commissioner for Work-men's Compensation allowed the petition, awarded compensation of Rs. 31,179.40 and the respondents were made jointly and severally liable to pay the amount of compensation. The learned Commissioner also awarded interest and amount of penalty, but however, directed that the amount of interest and penalty should be recovered from the owner of the vehicle, respondent No. 1. The insurance company, respondent No. 2, was absolved from the liability to pay the amount of interest and penalty. Therefore feeling aggrieved by this order of absolving the insurance company, respondent No. 2, from paying the amount of penalty and interest, appellants (original claimants) have filed the present appeal.
5. It was argued by learned Counsel that penalty amount is imposed or awarded as a result of non-payment of compensation amount in the given period. According to him, it was the primary responsibility of the employer to make payment of amount of compensation, within given time and as the amount was not paid within given time, the respondents, employer and the insurance company, were jointly and severally liable, to pay the amount of compensation, together with amount of penalty and interest. In reply, it was argued by the learned Counsel for the insurance company that the learned Commissioner for Workmen's Compensation was justified in not saddling the respondent insurance company with penalty. According to him, respondent insurance company is not at all liable to pay the amount of penalty, etc. and, therefore, the insurance company cannot be saddled with penalty. It was further argued by the learned Counsel that employer was bound to deposit the amount of compensation well within time. If the employer makes a default in depositing the compensation amount accordingly, he alone was at fault and, therefore, he alone was liable to pay the amount of penalty. The learned Counsel for the insurance company has taken us through the various provisions of Workmen's Compensation Act, 1923 and more particularly the provisions of Section 4-A(3)(b) of the Act. Therefore, in view of the submissions made by and the arguments advanced by the learned Counsel for the respective parties, following point arise for consideration, in this first appeal:
(1) Whether the insurance company is liable to pay the amount of penalty, etc., together with amount of compensation determined by the Commissioner for Workmen's Compensation?
6. It was argued by learned Counsel for the insurance company that the respondent insurance company is not liable to pay the amount of penalty and in support of his contention, relied on the decision given by the Apex Court in Ved Prakash Carg v. Premi Devi : AIR1997SC3854 :
When an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Compensation Act along with interest thereon, if any, as imposed by the Commissioner, under Sections 3 and 4-A(3)(a) of the Compensation Act will have to be made good by the insurance company jointly with the insured employer. But so far as the amount of penalty imposed on the insured employer under the contingencies contemplated by Section 4-A(3)(b) is concerned as that is on account of personal fault of the insured not backed up by any justifiable cause, the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The latter because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmen's Commissioner.
Similar view was taken by this Court while giving decision in United India Insurance Co. Ltd. v. Bhagirathibai 2003 2 CLR 858 and Swapnil Enterprises v. Chandrakala : 2004(3)MhLj324 .
In view of the decisions referred to above, the Workmen's Commissioner was justified and right in not saddling penalty on the respondent insurance company. In the decision in P.J. Narayan v. Union of India , it was held that:
This writ petition is for the purpose of directing insurance company to delete the clause in the insurance policy which provides that in case of compensation under Workmen's Compensation Act, 1923, the insurance company will not be liable to pay the interest. We see no substance in the writ petition. There is no statutory liability on the insurance company. The statutory liability under the Workmen's Compensation Act is on the employer. An insurance is a matter of contract between the insurance company and the insured. It is always open to the insurance company to refuse to insure. Similarly, they are entitled to provide by contract that they will not take on the liability for interest. In the absence of any statute to that effect, the insurance company cannot be forced by courts to take on liabilities which they do not want to take on. The writ petition is dismissed. No order as to costs.
Thus, in view of the decision given in the case of P.J. Narayan (supra), the respondent insurance company is not liable to pay the amount of interest. Therefore, the W.C. Commissioner rightly held accordingly. If we view the case of appellant in the light of the decisions referred to above then, it will come to the notice that, the learned Commissioner was right in not saddling penalty, etc., on the respondent insurance company. I, therefore, find no reason for interfering with the findings and the order recorded by the W.C. Commissioner. In the result, the appeal must fail.
7. First Appeal No. 110 of 1992 is dismissed.
In the circumstances of the case, the parties are directed to bear their own costs in appeal.