- (1.) In these three appeals by special leave, a short but ticklish question arises for consideration. It runs as under : "Where an employee receives a personal injury in a motor accident arising out of and in the course of his employment while working on the motor vehicle of the employer, whether the insurance company, which has insured the employer-owner of the vehicle against third party accident claims under Motor Vehicles Act, 1988 (hereinafter referred to as 'the Motor Vehicles Act') and against claims for compensation arising out of proceedings under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Compensation Act') in connection with such motor accidents, is liable to meet the awards of Workmen's Commissioner imposing penalty and interest against the insured employer under Section 4A(3) of the Compensation Act." The High Court of Himachal Pradesh in the impugned judgments has answered this question in the negative and against the insured employer. For coming to that conclusion reliance is placed by the said High Court on a decision of a Division Bench of Karnataka High Court in the case of Oriental Insurance Co. Ltd. v. Raju, 1994 Acc CJ 191 and the judgment of a learned single Judge of the Gujarat High Court in the case of Jayantilal and Co. v. Garasia Rajvirba Udesinh, 1992 Acc CJ 286. Identical view is taken by a Division Bench of the Gujarat High Court in the case of Gautam Transport, Bhavnagar v. Jiluben Huseinbhai, 1989 Acc CJ 587. The decision of a learned single Judge of the Delhi High Court in the case of Oriental Insurance Co. Ltd. v. Hasmat Khatoon, 1989 Acc CJ 862 has also fallen in line. While on the other hand a learned single Judge of Gauhati High Court in the case of Oriental Fire and General Ins. Co. Ltd. v. Nani Bala Devi, 1987 Acc CJ 655 : (AIR 1988 Gauhati 40); a Division Bench of the Orissa High Court in the case of Khirod Nayak v. Commissioner for Workmen's Compensation, 1992 Acc CJ 76; a learned single Judge of the Madhya Pradesh High Court in the case of New India Assurance Co. Ltd. v. Guddi, 1994 Acc CJ 1134 and a learned single Judge of the Rajasthan High Court in the case of United India Insurance Co. Ltd. v. Roop Kanwar, 1991 Acc CJ 74 have answered this question in the affirmative against the insurance company. There is another judgment of a Division Bench of the Gujarat High Court in the case of Radhabehn v. Mulji Kanji Dhord, 1994 Acc CJ 404 which has adopted a middle course and has answered the question partly in the affirmative so far as the imposition of interest contemplated by Section 4A (3) (a) of the Compensation Act is concerned and partly in the negative so far as the imposition of penalty on the owner-employer under Section 4A (3) (b) is concerned. Before we proceed to resolve the aforesaid conflict of decisions it will be profitable to note a few background facts leading to these appeals. Civil Appeals Nos. 15698-15699 of 1996
(2.) These two appeals arise out of a motor accident wherein the owner of a motor truck, appellant in these appeals, had entrusted the said truck for driving to one Pritam Singh and had employed one Hem Raj to be a cleaner attached to the said truck. The said truck met with an accident on 15th February, 1992 near Village Pulwahai on Kumarsain Dhamla Road in the State of Himachal Pradesh. In the said accident driver Pritam Singh and cleaner Hem Raj died on spot. It is the case of the appellant, owner of the truck, that having come to know about the accident on 16th February 1992 he immediately informed the Branch Manager of respondent No. 9-insurance company about the accident. According to the appellant, respondent No. 9-insurance company had insured the appellant comprehensively against all the risks arising out of the use of the said motor vehicle. That still the insurance company though bound to pay the heirs of the deceased-employees appropriate compen-sation as per the insurance cover, did not carry out the said obligation.
(3.) The two claim petitions came to be filed by the heirs and legal representatives of deceased driver and cleaner under the Compensation Act before the Commissioner for Workmen's Compensation, Rajgarh District, Sirmur, Himachal Pradesh. The said applications were moved presumably by exercising option available under Section 167 of the Motor Vehicles Act which lays down that 'notwithstanding anything contained in the Workmen's Compensation Act, 1923 where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Thus these two applications were in substitution and in place of otherwise legally permissible claims before the Motor Accidents Claims Tribunal functioning under the Motor Vehicles Act. In the said claim applications, the claimants joined the appellant-employer as well as respondent No. 9-insurance company as respondents. The Workmen's Commissioner after hearing the parties concerned computed the compensation available to the claimant-dependents of the deceased employees. So far as the claim put forward by the heirs of the deceased driver was concerned the Commissioner awarded a sum of Rs. 88,968/- as compensation. But as the compensation due was not paid either by the appellant-employer or by the insurance company as and when it fell due the Commissioner awarded a penalty of Rs. 41,984/- with interest at the rate of 6% per annum from the date of the accident till the date of payment under Section 4A(3)(a) and (b) of the Compensation Act. The entire amount of Rs. 88,968/- with penalty of Rs. 41,984/- and interest thereon was held payable by the insurance company to the claimants jointly and severally with the appellant-employer. The said amount was made payable by respondent No. 9-insurance company on the basis that the insurance company had insured the appellant against his liability to meet the claims for compensation for the death of employees dying in harness giving rise to proceedings against the insured employer under the Compensation Act. Similarly the Commissioner awarded a sum of Rs. 88,548/- to the claimants being legal representatives of the deceased cleaner. In addition to the said amount, penalty of Rs. 44,274/- with interest from the date of the accident till the date of payment was also made payable by respondent No. 9-insurance company.;