Rajasthan High Court - Jodhpur
Oriental Insurance Company Ltd vs Hansa Ben & Ors on 16 July, 2009
Author: Vineet Kothari
Bench: Vineet Kothari
(1) CMA-319/94-National Insurance Company Ltd. Vs. Smt. Babudi Devi & Ors., (2) CMA-
318/94-National Insurance Company Ltd. Vs. Shri Thakar Singh & Ors. & (3) CMA-320/94-
Oriental Insurance Company Ltd. Vs. Hansa Ben & Ors. Judgment dt.16.7.09
1/3
1. S.B. CIVIL MISC. APPEAL NO.319/1994
National Insurance Company Ltd. Vs. Smt. Babudi Devi & Ors.
2. S.B. CIVIL MISC. APPEAL NO.318/1994
National Insurance Company Ltd. Vs. Shri Thakar Singh & Ors.
3. S.B. CIVIL MISC. APPEAL NO.320/1994
Oriental Insurance Company Ltd. Vs. Hansa Ben & Ors.
Date of order : 16th July, 2009
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr. L.D. Khatri ) for Mr. Sanjeev Johari for the appellant.
Mr. Anil Joshi )
Mr. K.R. Choudhary )
Mr. Shama Bano ) for the respondents.
Mr. J. Gehlot )
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1. The controversy involved in these three appeals is as to whether the insurance company is liable to pay the penalty and interest under Section 4(A) of the Workmen Compensation Act, 1923 also or not while reimbursing the claims determined by the learned workmen Compensation Commissioner.
2. Learned counsels at Bar submits that the controversy is since covered by the decision of the Hon'ble Supreme Court in the case of Ved Prakash Garg V Premi Devi & Ors. - JT 1997 (8) S.C.229 in which the Hon'ble Supreme Court held as under:-
"(viii) As a result of the aforesaid discussion it must be held that the question posed for our consideration must be (1) CMA-319/94-National Insurance Company Ltd. Vs. Smt. Babudi Devi & Ors., (2) CMA-
318/94-National Insurance Company Ltd. Vs. Shri Thakar Singh & Ors. & (3) CMA-320/94- Oriental Insurance Company Ltd. Vs. Hansa Ben & Ors. Judgment dt.16.7.09 2/3 answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the workmen's Commissioner under the Compensation Act on the conjoined operation of Section 3 and Section 4A sub- section (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4A(3)(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone."
3. The learned counsel for the claimant does not dispute this legal position.
4. Learned counsel for the employer Mr. K.R. Choudhary, however, submits that the employer also would not be liable to pay the penalty in question because he was never independently heard in the matter by the learned Workmen Compensation Commissioner on the issue of penalty. However, since the employer has not approached this Court by way of any appeal or cross-objections against the impugned award, this contention cannot be entertained at this stage by this Court. If the employer has any other remedy under the law for challenging the said award or amount of penalty in any manner, he can do so. Subject to that it is held that the appellant insurance company would be liable only (1) CMA-319/94-National Insurance Company Ltd. Vs. Smt. Babudi Devi & Ors., (2) CMA- 318/94-National Insurance Company Ltd. Vs. Shri Thakar Singh & Ors. & (3) CMA-320/94- Oriental Insurance Company Ltd. Vs. Hansa Ben & Ors. Judgment dt.16.7.09 3/3 to pay the amount of compensation determined by the Workmen Compensation Commissioner and interest thereon but would not be liable to pay the amount of penalty in question.
5. Accordingly these appeals are partly allowed and it is held that the appellant insurance company would not be liable to reimburse the amount of penalty imposed by the workmen Compensation Commissioner while awarding the claim of respondent-claimants. However, the employer would continue to remain liable for the same. Consequently these appeals are partly allowed and it is held that appellant-insurance company would not be liable to reimburse the amount of compensation imposed by the workmen Compensation Commissioner in the impugned award. The respondents employer would, however, continue to be so liable for payment of the same to the claimants.
[ DR. VINEET KOTHARI ], J.
item No.4,5,6 babulal/