- (1.) B. S. Verma This appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short the Act) is directed against the judgment and award dated 30-3-1993 as amended by Order dated 3. 4. 1993 passed by the Workmen Compensation Commissioner, U. P Dehradun (for short the Commissioner) in W. C. A. No. 32 of 1987, Smt. Sulochana Devi and others Vs Deep Ram Bhatt and others, whereby compensation of Rs. 83,192-00 along with interest @ 6% and penalty of Rs. 10,000/- was awarded in favour of the claimant and against the appel lant-Insurance Company as mentioned in the impugned order. Aggrieved, the Insurance Company-appellant has come up in appeal.
(2.) RELEVANT facts of the case are that Smt. Sulochana Devi widow of late Bhagat Ram filed a claim petition before the learned Commissioner claim ing compensation of Rs. 83,192/- for the accidental death of her husband in the course of employment, who was em ployed as driver with Deep Ram Bhatt, who is owner of vehicle no. UTS-168. The claim petition was registered after condoning the delay in filing the claim petition and notices were issued to the opposite parties. The owner of the ve hicle Deep Ram Bhatt admitted that the deceased was employed as driver and he was paid wages @ Rs. 600/- per month. It was contended that the vehicle was duly insured with the United Insurance Company, therefore, the Insurance Com pany is liable to pay the compensation. It was also stated that the vehicle in question was sold to Harshmani Semwal prior to the date of accident in the name. Insurance Company con tested the case and stated in its written statement that on account of transfer of vehicle to O. P. No. 2, therefore, the in surance of Opposite Party No. 1 came to an end. The monthly wages of the deceased was also questioned. On the pleadings of the parties, the learned Commissioner framed nec essary issues in the case, recorded the evidence led by the parties, heard them and after perusing the evidence on record, came to the conclusion that the opposite party no. 1 Deep Ram Bhatt is the registered owner of the vehicle on the date of accident. It was found that the deceased was under the employment of owner of the vehicle Deep Ram Bhatt. It was also held that the vehicle was duly insured with the Insurance Com pany, it was also held that the accident resulting in fatal injuries and death of the deceased driver occurred in the course of his employment. The learned Commissioner found that the age of the deceased Bhagat Ram was 30 years at the time of accident and his income was Rs. 1,000/- per month. Accordingly, as per provisions of the Act the impugned order dated 30-3-1993, the compensa tion of Rs. 41,569-00 was awarded. Since there was calculation M/stake in the award, therefore, vide order dated 30-4-1993, the award was amended and compensation of Rs. 83,192-00 was awarded in favour of the claimant. At the outset, it may be noted that the appeal under Section 30 of the Workmen's Compensation Act can be entertained only if there is involved any substantial question of law. In the memo of appeal, however, no substantial ques tion of law has been formulated.
(3.) IN the course of arguments, the learned counsel for the INsurance Com pany urged that the imposition of pen alty of Rs. 10. 000/- by the learned Com missioner is not maintainable against the insurer. It was submitted that the IN surance Company cannot be made li able for payment of penalty. This sub mission of the learned counsel for the appellant has some force. IN my view insurance company is to pay the con tractual liability of the insured, i. e. com pensation and interest, and is not liable to pay penalty. I am fortified in my view by the Apex Court judgment in the case of L. R. Ferro Alloys Vs. Mahavir Mahto and another [ (2002) 9 SCC 450] wherein it was held in paragraph 5 that the com pensation with interest is payable by the INsurance Company, but not the penalty. The same view was taken by the Divi sion Bench of this Court in the case of "the New INdia Assurance Company Ltd. Vs. Smt. Meera Devi and another"[2006 (2)UC, 1350]. Accord ingly, I hold that the appellant-insurer is not liable to pay the amount of penalty. The liability to pay penalty obviously rests upon the employer/owner of the vehicle. I therefore hold that the appellant insurance company shall not be li able to pay the amount of penalty, i. e. Rs. 10,000/- , which shall be paid by the employer/owner of the vehicle. For the reasons aforesaid, the ap peal preferred by the Insurance Com pany is liable to be partly allowed. The amount of penalty i. e. Rs. 10,000/- shall be payable by the employer/ owner of the vehicle, Deep Ram Bhatt. To this extent the impugned awarded is liable to be modified.;