S SAMBOJI RAO Vs. ORIENTAL INSURANCE COMPANY

JUDGEMENT

(1.) THIS appeal by the owner of the lorry bearing registration No. Cns 5837 is directed against the judgment and award dated 27-8-1986 passed by the commissioner for workmen's compensation, tumkur in w. c. a. c. r. No. 13 of 1985 on his file in so far as it relates to the penalty of Rs. 11,532-40 ps. Made payable by the owner of the lorry.

(2.) THERE is no quarrel between the parties as to the compensation amount awarded. But the appellant who is the owner of the lorry and the employer of nazir ahmed has challenged the penalty levied on him under Section 4-a (3) of the Workmen's Compensation Act, 1923 (for short 'the act') by the commissioner for workmen's compensation.

(3.) SRI k. Prabhakar, learned counsel for the appellant contended before me that the impugned award in so far as it relates to levy of the penalty is bad in law in as much as the commissioner for workmen's compensation has not exercised his discretion judicially in levying the penalty and without giving opportunity to the appellant to justify his conduct in not depositing the amount well within time. In support of his contention, he placed strong reliance on the decision of the High Court in N. A. K. Pathan v Julekhabi Pathan. He also placed reliance on the decision of the High Court of Punjab and Haryana at Chandigarh in Rajni Rani and others v Om Prakash and another. In the aforesaid decisions it has been clearly held that unless the employer is called upon to show cause for the delayed payment, it is not reasonably possible for the commissioner to come to the conclusion whether or not there is any justification for the delay and obligation on the part of the commissioner to hear the party adversely affected is clearly implicit in the provision, for no one can be condemned unheard.