Decided on March 18,2008



- (1.) THIS appeal, preferred under Sec. 30 of the Workmen's compensation Act, 1923, is directed against the judgment and award passed by the Workman Compensation Commissioner, Gandhidham, Kutch in W. C. F. No. 11 of 2006 dated 2-1-2007 by which the learned Commissioner has awarded an amount of Rs. 2,24,000/- to the distraught heirs and legal representatives of deceased Dhaniben Pababhai. The learned Commissioner has further awarded interest at 12% from 9-6-1998 till the date of payment, Rs. 1,12,000/- being 50% penalty, Rs. 1000/- towards obsequial expenses, and Rs. 5000/- towards costs.
(2.) BEING aggrieved by the aforesaid award passed by the learned commissioner, the Insurance Company, The New India Assurance Company limited has preferred the present appeal mainly on the grounds that the Insurance policy produced in the matter makes it abundantly clear that it covers risk of only 40 workers; since the Commissioner has already discussed in the order that 66 persons had filed claim petitions from which only 17 applications were allowed and the rest of the applications were dismissed, the present application would definitely exceed the limit of 40 workmen as provided under the policy, and therefore, the claimants are not entitled to compensation as prayed for in the claim petition. Learned Advocate further submitted that on perusual of the policy, it becomes clear that the Insurance Company is not liable to pay interest and/or penalty imposed on the insured on account of his/their failure to comply with the requirements as laid down under the Act, and therefore, the award of interest and penalty by the Commissioner on the Insurance company requires to be quashed and set aside. Mr. Gadhia submitted that as the insurer has specifically excluded any liability for interest or penalty and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under Workmen's Compensation Act, the appellant cannot be fastened with liability to pay penalty and/or interest. Save and except, the above two submissions, no other submissions are canvassed by the learned Advocate for the appellant-Insurance Company. Thus, the learned advocate submitted that considering the entire gamut of evidence adduced before the learned Commissioner, the appellant has made out a case for interference in the appeal and the appeal requires to be allowed, and the order passed by the learned Commissioner requires to be quashed and set aside. Learned advocate for the appellant has also placed reliance on the judgment in the case of Devki Fabrics Ltd. v. Raiben W/o Mafatlal Gangaram Patel and Anr. reported in 2006 (III) CLR 487.
(3.) AS against the aforesaid submissions, Mr. Balram Jain, the learned counsel representing the claimants submitted that the Commissioner has not committed any error in awarding compensation to the claimants. Learned commissioner, has after taking into consideration the policy issued by the appellant, awarded the said compensation and no interference is called for in the appeal preferred by the present appellant. He further submitted that the learned Commissioner has also considered the evidence adduced by both the sides and arrived at the finding that the original claimants are required to be paid Rs. 2,24,000/- as they were dependents on deceased Dhaniben who died during the course of employment with the respondent Nos. 1 and 2. Thus, the learned Advocate submitted that no case for interference is made out and the appeal deserves to be dismissed.;

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