ORIENTAL INSURANCE COMPANY LIMITED Vs. BIMLA DEVI

JUDGEMENT

(1.) This order will dispose of the appeal filed by the Insurance Company against an order passed under the provisions of the Workmen's Compensation Act whereby the Commissioner, Workmen's Compensation has directed a sum of Rs. 82,380/- to be paid to respondents 1 and 2 by way of compensation for the death of one Mr. Som Dev who had allegedly died during the course of his employment with respondents 3 and 4. Besides compensation the Commissioner, Workmen's Compensation also directed a penalty of 50% of the amount of compensation to be paid to the claimants. The vehicle which had met with an accident and in which the deceased was stated to be employed was insured with the appellant-Insurance Company. The Insurance Company has challenged this award mainly on two grounds, namely, (1) that the claim petition before the Commissioner, Workmen's Compensation Act was barred by time inasmuch as while the accident took place on 27.3.1988, the claim petition was filed in May, 1990 i.e. beyond the period of two years prescribed under the Workmen's Compensation Act for filing claim and (2) the Insurance Company could not be held liable to pay the amount of penalty imposed by the Commissioner, Workmen's Compensation.

(2.) It is contended by learned Counsel for the appellant that under Section 10 of the Workmen's Compensation Act an application claiming compensation could be filed within two years of the occurrence of the accident and since admittedly the accident had taken place on 27.3.1988, the application after the expiry of two years from the date of the accident was not maintainable. I am not impressed with the arguments advanced by learned Counsel for the appellant and the contention has been noted to be rejected. The claim petition was originally filed by the injured himself in May, 1990. During the pendency of this petition, he died in June, 1990. Though under the Act the Commissioner has the jurisdiction to entertain and decide the claim compensation even if the same has been preferred beyond the period of limitation prescribed under the Act, however, even assuming that the claim petition filed by the deceased could not be entertained being barred by limitation, the deceased having died in June, 1990, an application claiming compensation could have been filed by his heirs within two years from the date of his death. Since the original claim petition was already pending, the same was amended so as to claim compensation for his death. This claim, in any case, was filed within time. In my view, therefore, there are no merits in the arguments advanced by learned Counsel for the appellant that the claim petition was not within time.

(3.) The second contention of learned Counsel for the appellant is that the appellant had deposited a sum of Rs. 31,149/- being the compensation for the injuries received by the deceased. This amount was deposited sometimes in the year 1993 pursuant to an order made by the Commissioner on 7.4,1993. The contention of learned Counsel for the appellant, therefore, is that since the amount of compensation for the injuries sustained by the deceased has been deposited, there was no question of the appellant being imposed any penalty. For this reliance has been placed by learned Counsel for the appellant upon the judgment of the Supreme Court in Ved Prakash Garg Etc. v. Premi Devi and Others Etc., II (1997) ACC 520 (SC) wherein it was held that as far as the amount of penalty imposed upon the insured /employer under the contingencies contemplated under Section 4A (3) (a) is concerned, that is on account of the personal fault of the insured not backed up by any justifiable cause and the Insurance Company could not be made liable to reimburse that part of the penalty amount imposed on the employer. It was held that the employer because of his own fault and negligence will have to bear the entire burden of penalty amount with proportionate interest thereon, if imposed by the Workmen's Commissioner.