PANWAR, J. - (1.) THESE two appeals arise out of the common judgment and award dated 9. 04. 1996 passed by learned Workmen's Compensation Commissioner, Jodhpur (hereinafter referred to as "the Commissioner") in W. C. Cases No. 2/93 and 1/93, and involve common questions of law and facts, therefore, for convenience, they are disposed of together by a common judgment.
(2.) BRIEFLY stated facts to the extent they are relevant and necessary for decision of these two appeals are that deceased Arjun Ram and Mohd. Saddiqui were engaged on truck No. RNS 2639 as driver and cleaner respectively in employment of respondent No. 3 Smt. Santosh, owner of the said truck. On 1. 01. 1991 the said truck loaded with goods, was plying from Bharatpur to Jaipur. It was driven by its driver Arjun Ram and Mohd. Saddiqui was cleaner of the said truck on the relevant date. When the said truck reached in the area of village Kamalpura, it collided with another truck-troller. Due to this accident, the driver of the said truck Arjun Ram and the cleaner Mohd. Saddiqui received injuries and ultimately succumbed to the injuries. Legal representatives of deceased Arjun Ram filed claim petition W. C. Case No. 1/93 and legal representatives of deceased Mohd. Saddiqui filed claim petition W. C. Case No. 2/93 against the employer Smt. Santosh, registered owner of the truck noticed above and against appellant National Insurance Company Limited (for short "the Insurance Company" hereinafter' ). By the judgment and award impugned dated 9 April, 1996 the learned Commissioner awarded compensation, interest and penalty, holding the employer owner as well as the appellant Insurance Company of the vehicle liable for payment of compensation. The learned Commissioner further held that since on the relevant date of the accident the said truck was validly insured with the Insurance Company and, therefore, the appellant Insurance Company was directed to pay the compensation as awarded by it. Aggrieved by the order impugned, the Insurance Company has filed these two appeals. I have heard learned counsel for the parties. Perused the judgment and award impugned as also record of the learned Commissioner. The only point argued by the learned counsel for the Insurance Company is that the learned Commissioner fell in error in awarding penalty against the Insurance Company. He relied on a decision of the Hon'ble Supreme Court in Ved Prakash Garg vs. Premi Devi and others (1998 ACJ 1), wherein the Hon'ble Supreme Court held that the Insurance Company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmen's Commissioner under the Compensation Act on the conjoint operation of Sec. 3 and Section 4-A sub-sec. (3) (a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmen's Commissioner under Sec. 4-A (3) (b) is concerned, however, the Insurance Company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone.
(3.) LEARNED counsel for the owner contended that by accepting additional premium the appellant Insurance Company had agreed in the light of endorsement IMT - 17 of the policy to cover all liabilities incurred by the insured in the Compensation Act. He has relied an a judgment of this Court in United India Insurance Company Limited vs. Roop Kanwar and others, 1991 ACJ 74 (Rajasthan ). He further contended that the judgment of this Court came to be considered by the Hon'ble Supreme Court in Ved Prakash Garg vs. Prem Devi (Supra), wherein the Hon'ble Supreme Court held that in view of this contractual coverage of the liability, the Insurance Company was liable to meet the claim for penalty and interest as imposed upon the insured under Section 4-A (3) of the Compensation Act. The policy of the Insurance Company Exhibit-2 is on the record. Endorsement IMT-17 reads as under: " IMT-17 - LEGAL LIABILITY TO PERSONS EMPLOYED IN CONNECTION WITH The OPERATION AND/or MAINTAINING AND/or UNLOADING OF GOODS CARRYING COMMERCIAL VEHICLES. In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the Insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendment of the Act prior to the date of the Endorsement, the Fatal Accidents Act7 1855 or at common Law in respect of personal injury to any paid driver or cleaner or persons employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner whilst engaged in the service of the Insured in such occupation in connection with the goods carrying Commercial Vehicle and will in addition be responsible for the costs and expenses incurred with its written consent. " A plain reading of this endorsement noticed hereinabove of the policy clearly provides that in consideration of the payment of an additional premium, the Insurance Company agreed to indemnify the insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendment of the Act prior to the date of the Endorsement, the Fatal Accident Act, 1855 or at common Law in respect of personal injury to any paid driver or cleaner. ;