1. Heard Sri Arun Kumar Srivastava for the appellant - owner of the vehicle, Sri Amit Singh for Insurance company and Sri Sumit Daga for original claimant.
2. By means of this appeal, the appellant challenges the judgment and award dated 30.3.2002/1.4.2002 passed by Deputy Labour Commissioner, Saharanpur, in Workmen Compensation Case No.4 of 2001 (Smt. Haseena & others Vs. Smt. Rekha Goel and others) awarding 50 per cent penalty on the appellant - owner of the awarded amount.
3. At the outset it is a settled principle that the issue arises for consideration before this Court under Section 30 of the Act is to examine substantial questions of law. In this case, this Court passed the following order on 4.6.2003:-
"Till the next date of listing, the recovery of the penalty amount shall remain stayed provided the appellant deposits 50 per cent of the penalty amount within a period of two weeks from today. In the case of default, the stay order shall automatically stand vacated. On the deposit being made, the vehicle in question shall be released from attachment."
This order was further modified and stay on payment of penalty has been granted by this Court on 17.11.2004 as the claimant was pressing for the execution. Operative part of the order dated 17.11.2004 reads as under:-
"Admit.
Issue notice on the substantial questions mentioned in the memo of appeal.
Till further orders of the Court only the penalty imposed by the court below shall remain stayed."
4. The brief facts which would be very necessary for our purpose are that the claimants preferred a claim petition before the Deputy Labour Commissioner, Presiding Officer, under Workmen Compensation Act, 1920, Saharanpur. The claimants were the heirs of Shaukeen Ali son of Mausam Ali, who was employed by the appellant as a driver. The deceased driver died while on duty while returning back from Uttrakhand. The deceased was 25 years of age. He had left behind him his mother and 5 brothers and sisters. The claim petition was filed on 5.12.2000. The appellant rebutted the averments by filing a written statement contending that the mother of the deceased was not dependent on the deceased. The quantum of salary was disputed to be Rs.3,500/- per month. The written statement was filed immediately along with the copy of the Insurance policy. A show cause notice was issued by the Commissioner as to why penalty should not be levied, to which reply was filed. However, a penalty of Rs.1,08,445/- was imposed. It is this order of penalty which has aggrieved the appellant.
5. Sri A.K. Srivastava contends that the owner is at no fault and he has been wrongly ordered to pay penalty, which requires interference by this Court on the following grounds that the Deputy Labour Commissioner was not legally justified in awarding penalty without any pleading of penalty in the claim petition. It is further submitted that even if the appellant was liable to pay the penalty to the claimant from their own pocket as the vehicle was fully insured the Insurance company should have been saddled with the said liability and it is contended that for an insured vehicle, penalty should have been imposed on the insurers. He has heavily relied on the decisions in the case of State of Maharashtra Vs. Arti, 2007 LawSuit (BOM) 1311 and Diamond Cements Vs. Pravin Bano, 1996 LawSuit (MP) 473, and has submitted that the employer had denied the liability for compensation and, therefore, it had not fallen due on the date of the accident.
6. It is further submitted by counsel for the appellant in the alternative that even if the appellant has been ordered to pay the penalty, the penalty of 50 per cent of the awarded compensation is too harsh as she is one, who filed the F.I.R. She is one, who filed reply immediately and gave all the papers to the claimants but they did not file the claim expeditiously. The only lapse on their part was that the owner did not intimate the Insurance company due to lack of legal knowledge.
7. As against this, Sri Amit Singh submits that the Insurance company was never intimated by the owner about the accident and, therefore, the penalty cannot be saddled on the Insurance company. It is further submitted that there was no contract by and between the owner and the Insurance company to indemnify for the interest or the penalty which may arise due to non payment by the owner.
8. It is further submitted by Sri Amit Singh that as per Section 4-A, the liability is always of the owner even if the vehicle is insured so far as the issue of penalty is concerned and has relied on the decision of the Apex Court in the case of Ved Prakash Garg Vs. Premi Devi, 1997 LawSuit (SC) 1213, and New India Assurance Co. Ltd. Vs. Manjoor Khan and others, FAFO No.85 of 1993, decided on 16.2.2017. In these cases, the policy did not cover full amount whereas in the case on hand while going through the policy, it is a comprehensive policy and, therefore, the Insurance company cannot take the aid of these two judgments rather it would be covered by the subsequent judgment of the Apex Court in Siby George (supra).
9. Section 3 and 4-A of the Act have been recently interpreted by the Apex Court in Tebha Bai and others v. Raj Kumar Keshwani and others, 2018 ACJ 2791, holding that:-
"Section 3 (1) - Arising out of and in the course of employment - Workman was driving truck of his employer when it met with accident resulting in his death - Commissioner rejected the claim on the ground that deceased was not in the employement of owner of truck and he did not die in accident while he was on duty - High Court affirmed the order - Testimony of the widow that deceased was in the employment of owner of truck and died while driving the truck is worthy of credence as there is neither any contradiction in her examination-in-chief nor in her cross-examination and her evidence is consistent throughout - Whether Commissioner erred in rejecting the claim and dependents are entitled to compensation - Held: yes; no reason dependents would file a case on false grounds; awarded Rs.1,00,000/-."
and in Shiva Vs. President, Indo Rama Synthetics (I) Ltd. and another, 2018 ACJ 2800:
Section 4-A (3) (a) - Interest - From when due - Contention that compensation was not paid within a month from the date of accident and Commissioner was not justified in allowing interest from the date of his order - Whether interest has to be calculated from the date of accident and not from the date of order of the Commissioner - Held: yes; interest awarded at 12 per cent per annum from the date of accident.
10. The finding of Tribunal is assailed by the Advocate for the appellant Sri A.K. Srivastava that the appellant has been wrongly penalized and finding is perverse and requires to be quashed and set aside in the alternative (a) the penalty be reduced; and (b) it has to be paid by the Insurance company as per the recent judgments of the Apex Court.
11. Sri Sumit Daga appearing for the claimants has submitted that the penalty has been rightly imposed as the amount fell due on the date of the accident and it cannot be said that there was any dispute about the deceased being in employment. The delay is caused by flimsy grounds and the owner should have deposited the amount even at the basis of Rs.2,000/- per month, which they have not done for two months. He has relied on the decisions of Pratap Narain Singh Deo Vs. Srinivas Sabata and another, (1976) 1 SCC 289, and Oriental Insurance Co. Ltd. Vs. Siby George and others, 2012 (5) AWC 5042 (SC), and has submitted that the order of penalty need not be quashed or interfered with as the amount would accrue the moment the accident occurred and it is between the Insurance company and the insured, who has to deposit the penalty. According to learned counsel Sri Sumit Daga the interest and penalty both have to be deposited by the Insurance company.
12. A reference to the judgment of Pratap Narain Singh Deo Vs. Srinivas Sabata and another, (1976) 1 SCC 289, and Oriental Insurance Co. Ltd. Vs. Siby George and others, 2012 (5) AWC 5042 (SC), has been made by the Apex Court in a recent judgment delivered on 2.11.2018 in the case of North East Karnataka Road Transport Corporation Vs. Sujatha, 2018 (0) AIJEL-SC 63007. The decision of the Apex Court (supra) will in the facts of this case squarely apply as the owner did not intimate the Insurance company about the death. There was no dispute that the deceased was its employee and had died out of employment injuries. It is not in doubt that sub-section 3 gets attracted as the appellant did not deposit the compensation as per section 4 of the Act. The compensation provided under the Act is to get security for deceased. In this case, the liability was not disputed and therefore the amount ought to have been deposited, which has not been done. The intimation has also not been given to insurer. These are findings of fact which cannot be said to be perverse and are proved. The Workmen Commissioner has saddled the liability on the owner by giving cogent reasons. The accident occurred on 10.10.2000. The claim petition was filed on 5.12.2000 namely one month after the amount had become due meaning thereby the claimants waited for the owner to make good the money as per Section 3 of Workmen Compensation Act but without any amount being paid to them, the appellant herein filed its reply according to appellant immediately on receipt of notice/summons from the Commissioner. The appellant has submitted that they cannot be held liable for penalty as the delay was not by them.
13. The factum of amount of his salary was disputed. The Workmen Commissioner has held on finding of fact that had the owner given intimation, then the Insurance company might have deposited the amount. The Tribunal has held him liable for 50 per cent of the awarded amount. The fact that after 2001, the Insurance company took all flimsy ground namely that the vehicle was not insured. The Insurance company could have first deposited the amount and therefore they were also at a fault in not mitigating the difficulty of the widow and the minor children, who were 5 in number.
14. The questions of law raised are as under:-
"(i) Whether in the facts and circumstances of the case, the Deputy Labour Commissioner was legally justified in awarding penalty without any pleading of penalty in the claim petition.
(ii) Whether in the facts and circumstances of the case, the receipt of deposit of the penalty is must before filing the appeal under Section 30 of Workmen Compensation Act, 1923.
(iii) Whether in the facts and circumstances of the case, the appellant was liable to pay the penalty to the claimant from their own pocket even through the vehicle was fully insured.
(iv) Whether for an insured vehicle, penalty should have been imposed on the insurers."
15. The answer to question of law no.1 raised by the appellant is held against the appellant as no issue is to be framed or it has not be pleaded. Subsequent notice is sufficient for the invocation of penalty clause under Section 4-A.
16. The penalty is in addition to willful default. In this case, the accident occurred in the year 2000. The insured saw that the matter be disposed of as early as possible. The order of Commissioner holding the owner-appellant was grossly negligent and imposed the maximum penalty, this requires to be modified.
17. One more aspect which now requires to be looked into is who has to bear the penalty and what should be the penalty. In the facts of this case, the imposition of penalty at 50 per cent of the awarded amount is too harsh. It is reduced to 15 per cent of the awarded amount as the employer though had defaulted, had seen that the matter was compromised as early as possible and, therefore, the award of 50% of penalty was too harsh. 15% penalty is in consonance with the decision of the Apex Court in Praveenbhai S. Khambhayata Vs. United India Insurance Company Limited, 2015 (0) AIJEL-SC 56165.
18. The judgment of the Apex Court in the aforesaid matter and in the case of Siby George (supra) will permit this Court to hold that the Insurance company also committed default in making the payment despite the fact that they had notice of the death and that the insurance covered the deceased despite that they did not deposit the amount which clearly shows that they also had committed breach of Section 4-A being legally bound to deposit the amount. I am supported in my view by the recent decision. The Apex Court has held that the Insurance company will be liable to pay both the interest as well as penalty in the facts of this case.
19. No other factual perversity is pointed out. Recently the Apex Court in the case of Tebha Bai Versus Raj Kumar Keshwani, reported in 2018 ACJ 2791, and also the judgment of Supreme Court in the case of Oriental Insurance Company Limited Versus Siby George and others, 2012 LawSuit (SC) 470, holding that the Insurance Company would be liable to pay interest on the compensation awarded, the amount of penalty was also ordered to be paid by Insurance Company. Hence, questions of law raised are also answered against the Insurance Company and in favour of the employee.
20. The owner having deposited the amount of 25% pursuant to the orders of this Court will be at liberty to recover the same from the Insurance company. The Insurance company will indemnify the insured if the insured provides the receipts for depositing of the amount pursuant to the interim relief by this Court if not the amount be deposited in execution proceeding if still pending by the Insurance company.
21. The appeal is partly allowed. The question of law is answered likewise partly in favour of appellant and against the Insurance company.
Order Date :- 28.2.2019 Irshad