1. This appeal has been filed against the judgment and award dated 27.03.1986 passed by the learned Workmen's Compensation Commissioner, Kutch at Bhuj in Workmen Case No.22 of 1984, whereby, the said case was allowed and the appellant-Insurance Company and the respondent employer were directed to pay an amount of Rs.79,200/- to the claimant towards compensation along with interest @ 6% p.a. from the date of accident till its realization and penalty.
2. The facts in brief are that on 10.07.1984, while Krishnanrajan was on his duty at that time an accident occurred, as a result of which, he sustained severe injuries, which resulted into his death. The legal heirs of the deceased filed application before the Workmen's Compensation Commissioner, which came to be partly allowed, by way of the impugned award.
3. It has been mainly contended on behalf of the appellant Insurance Company that the learned authority has erred in appreciating the fact that the claim against the appellant Insurance Company was not maintainable. It has been pointed out that the liability entirely rests upon the employer. However, the learned authority lost sight of the above fact holding the appellant Insurance Company liable, which is erroneous. She, therefore, submitted that the appellant Insurance Company is required to be exonerated from the liability of payment of compensation.
4. The learned counsel for the respondent workman supported the impugned award passed by the learned authority and has relied upon the decision of the Hon'ble Apex Court in the case of Gottumukkala Appala Narasimha Raju & Ors. v. National Insurance Company Ltd. AIR 2007 SC 2907 and submitted that the insurance company is rightly been held liable.
5. Heard learned counsel for the respective parties and perused the documents on record. It is not in dispute that the respondent workman sustained injuries during the course of employment with the respondent employer. It is also not in dispute that the respondent employer has barred the appellant Insurance Company from payment of the insurance. It is also not in dispute that the insurance was in force when the accident occurred. Here, it would be relevant to note that the provisions of Workmen's Compensation Act, 1923 does not expressly barred the competent authority from deciding the issue of negligence by the Insurance Company in the proceedings filed under the provisions of Workmen's Compensation Act. In this case, it appears that while adjudicating the issue, the learned authority came to the conclusion that the respondent employer and the appellant Insurance Company were liable to make payment of compensation. The said conclusion has been arrived at after due and proper adjudication. In the decision relied upon by the learned counsel for the respondent in the case of Gottumukkala Appala Narasimha Raju (Supra) the Hon'ble Apex Court has categorically observed that Section 19(1) of the 1923 Act specifically provides that any question in regard to the liability of a person who is required to indemnify the employer must be determined in the proceeding under the said Act and not by way of a separate unit.
6. In view of the above and keeping in mind the aforesaid decision, I am of the opinion that the learned authority was completely justified in holding the appellant Insurance Company also liable to make payment of compensation. I do not find any merits in this appeal and the same deserves to be dismissed.
7. So far as the issue of penalty is concerned, it is made clear that the appellant Insurance Company shall not be liable to make good of the said amount of penalty and the same shall be recovered from the respondent employer.
8. In the result, the appeal stands dismissed. No order as to cost.
[K.S.
JHAVERI, J.] /phalguni/