BANSAL TRANSPORT COMPANY Vs. RASHIKA JAIN AND ORS.

JUDGEMENT

(1.) THIS civil misc. appeal has been filed against the order dated 06.12.2012, passed by the Commissioner, Employees' Compensation Act, Sawai Madhopur (hereinafter 'the Commissioner') whereby the learned Commissioner has awarded compensation of Rs. 4,07,700/ - to the respondents -claimants (hereinafter 'the claimants') against the defendant -Insurance Company. Interest payable @ 12% on the compensation was apportioned between the two defendants and further imposed a penalty of Rs. 2 lakhs on the appellant -defendant -Company (hereinafter 'the defendant -Company').

(2.) THE facts of the case are that one Rajesh Kumar Jain, husband of the respondent -claimant No. 1 (hereinafter 'the claimants') was working as a driver on the truck of the defendant -Company, which is engaged in transport business. On 19.09.2008 after delivering LPG gas at Delhi, on the way he met with a serious accident. The defendant -Company got the said Rajesh Kumar Jain admitted to Safdarjung Hospital, New Delhi where he was treated at the cost of the defendant -Company. It appears that the injured Rajesh Kumar Jain and his family being uncomfortable at the Safdarjung Hospital, got shifted to Jaipur, where the injured was admitted at SMS Hospital. Thereafter the injured Rajesh Kumar Jain moved to his hometown at Sawai Madhopur where his treatment continued. Unfortunately he died on 28.04.2009 from the injuries sustained in the accident of 19.09.2008. The defendant -Company's case is that it was not informed of the death of Rajesh Kumar Jain and only came to know of it on the receipt of notice of the claim petition filed by his legal heirs, as claimants, before the Commissioner, Sawai Madhopur on 01.06.2010. In reply to the claim, the factum of the accident dated 19.09.2008 in the course of employment was not disputed nor was the factum of Rajesh Kumar Jain's employment with the defendant -Company at the relevant time. It was however stated that in view of the vehicle on which Rajesh Kumar Jain was the driver being insured, the Insurance Company was responsible to pay the compensation under the Employees' Compensation Act, 1923 (hereinafter 'the Act of 1923') as also interest and Penalty thereon.

(3.) MR . Ajay Tyagi, appearing for the defendant -Company, has submitted that interest and penalty under Section 4A(3)(a)(b)of the Act of 1923 can be levied only when circumstances so warrant. He submitted that in the facts of the case, the defendant -Company was not even aware of the death of Rajesh Kumar Jain till receipt of notice of the claim petition filed by the claimants on 01.06.2010. And in view of the fact that the vehicle on which Rajesh Kumar Jain was a driver was insured, the claimants were entitled to compensation from Insurance Company. The defendant -Company could therefore not be held responsible or liable for non -payment of compensation within 30 days of the death of Rajesh Kumar Jain. It has been submitted that in the facts of the case, the learned Commissioner ought not to have found lack of justification for the delay in payment of compensation also for reason that the matter was pending before him and the delay in payment of compensation was not attributable to the defendant -Company. He further submitted that in any event of the matter Section 4A(3)(b) of the Act of 1923 provides for penalty "not exceeding 50%". He submitted that in the facts of the case the penalty of Rs. 2 lakhs on the defendant -Company was close to 50% limit provided under Section 4A(3)(b) of the Act of 1923 and no reason has been stated by the Commissioner as to why a lesser penalty would not have served the ends of justice.