NEW INDIA ASSURANCE CO LTD Vs. FATAMABAI

JUDGEMENT

(1.) This letters patent appeal is directed against the judgment and order dated December 2, 1997 passed by learned single Judge of this Court in Misc. Appeal No. 250 of 1996.

(2.) The facts of the case, in brief, are that Kasam Mansuri, the husband of the claimant/respondent was employed as cleaner (Khalasi) by the non-applicant No. 1, the driver and son of the non-applicant No. 2, Jakir Hussain, the owner of the truck bearing registration No. MPU 6433 on the salary of Rs. 600.00 per month. On September 13, 1986 the deceased was helping the driver Jakir Hussain in loading cement bags in Vikram Cement Factory situated at village Khore, Tehsil Javad, District Mandsaur. The deceased Kasam Mansuri demanded amount of his wages as well as allowance for the period from April 1986 to September 13, 1986 which were outstanding against him. On account of this there ensued quarrel between Jakir Hussain and deceased Kasam Mansuri. Jakir Hussain inflicted tummy-blows on his abdomen and throttled him as a result of which he died. Jakir Hussain was prosecuted for the offence under Section 302 I. P. C. and was convicted by the Sessions Court. The claimant filed claim case seeking compensation under, the Workmen's Compensation Act, 1923 (for short the Act) alleging that the death of Kasam Mansuri took place in the motor accident arising out of and in the course of his employment. The respondents resisted the claim. The learned Commissioner held that the deceased died in the motor accident arising out of and in the course of employment and awarded compensation of Rs. 53,128.00 and directed the Insurance company to deposit this amount within one month from the date of the order failing which it shall have to pay interest at the rate of 6 per cent per annum from the date of accident till deposit and also pay Rs. 23,000.00 as penalty. The non-applicant Insurance Company filed M. A. No. 250796. The Hon. single Judge of this Court, after hearing counsel for both sides, confirmed the finding of the Commissioner that the deceased died in the motor accident arising out of and in the course of his employment and maintained the compensation amount also the order directing that if compensation was not paid within 30 days from the date of the order, the appellant Insurance Company shall pay penalty. He reduced the amount of penalty to Rs. 10,000.00. Hence this L. P. A. by the non-applicant Insurance Company.

(3.) Shri H. G. Shukla, learned counsel for the Appellant, submitted that the Commissioner as well as the Hon'ble single Judge, fell in error in directing the appellant Insurance Company to pay penalty. This order is against the pronouncement of the Supreme Court in case of Ved Prakash Garg v. Premi Devi and others AIR 1997 SC 3854 : 1997 (8) SCC 1 : 1998-I-LLJ-363. On the other hand Shri Kemkar, learned counsel for the respondent- claimant supported the impugned order passed by the Hon'ole single Judge. He contended that the penalty was not imposed under Section 4-A of the Act. This condition was put by the Commissioner so that the amount of compensation may be paid immediately. The decision of the Apex Court in case of Ved Prakash Garg (supra) is not applicable to this case.