AMITAVA LALA, J. - (1.) ALL the appeals are analogously heard because a common question is involved herein. The common question is whether insurance company is liable to pay interest and/or penalty to the claimants even in absence of contract between the employer and insurance company or not. Ac­cording to us, it is obviously a substantial question of law which requires consid­eration at the threshold.
(2.) FIRST Proviso to sub-section (1) of Section 30 of the Workmen's Compen­sation Act, 1923 (hereinafter called as Act, 1923) categorically says that no appeal shall lie against any order unless any substantial question of law is involved in the appeal. Therefore, no appeal can be said to be maintainable as a matter of course unlike the other law or laws available in this field. Very often we come across the appeals from such type of orders passed by the respective Commissioners under Workmen's Compensation Act, 1923 (hereinafter called as the Commissioner) under which the insurance companies are fastened with the liabilities to pay the interest and/or penalty irrespective of payment of compensation without verification of the contractual obligation be­tween the employers and insurance companies. In the State of Uttar Pradesh, the posts of Commissioners under the Act, 1923 are being filled up by the mem­bers of the executives not by the members of the judiciary unlike other States. Instead of being proud position emerges to irrationality. It is not very far to say about ignorance of law but presently we say that the attitude prevailing in the field is mechanical. Hence, we want to give it to priority even at the stage of admis­sion.
(3.) IN New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya and another, (2006) 5 SCC 192, the Supreme Court held that by reason of the provi­sions of the Act, an employer is not statutorily liable to enter into a contract of insurance unlike Section 147 of the Motor Vehicles Act, 1988. However, Section 17 of the Act, 1923 does not limit or make any restriction from contracting out between the employer and insurer. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided therein. With a view to minimise his liability, an employer can contract out so as to make the insurer not liable as regards indemnifying him in relation to certain matters which do not strictly arise out of the mandatory provisions of any statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law. The entitlement of the claimant under the Act, 1923 is to claim the compensation from the employer. As between the employer and the insurer the rights and obligations would depend upon the terms of the insurance con­tract.;