Manak Mohta, J. - (1.) This Misc. Appeal has been preferred by the United India Insurance Company Limited against he order dated 30.10.95 passed by the Workmen's Compensation Commissioner, Udaipur in Case No. WC/41/88 Nana and another v. Meer Alam Khan and another whereby the learned Workmen's Compensation Commissioner has awarded compensation to the tune of Rs. 80,640/- and 25% penalty of Rs. 20,160/-. It has also been ordered that the interest shall be paid @ 6% p.a. in case the principal amount is deposited by the Insurer within a period of 60 days from the date of this order i.e. 30.10.95. Brief facts giving rise to the present appeal are that on 20.6.88, Tractor No. RSJ 2803 owned by respondent No. 3 Meer Alam Khan and insured with the appellant-United Indian Insurance Company Udaipur was being driven by Lal Singh aged 20 years. The said tractor was given on contract basis for a period of one year. There were four labourers on the tractor for the purpose of loading and unloading of soil. They were jointly paid Rs. 1201- per day. Thus, every one of them earned Rs. 30/- per day. On the fateful day, the deceased-labourer named Ramesh aged 20 years was sitting on the mud-guard of the tractor. The driver Lal Singh was driving the tractor rashly and negligently, all of sudden, Ramesh fell on the ground and he was crushed by the same tractor and died on the spot. The claimant-respondents No. 1 and 2 (parents of the deceased) moved an application before the Workmen's Compensation Commissioner under the provisions of Workmen's Compensation Act, 1923 and for no fault liability under the Motor Vehicles Act, 1939. The claim petition was opposed by the appellant-Insurer on the ground that as per Insurance Policy, the liability cannot be fastened on the appellant-Insurer as no information from either side to the Insurer was given regarding the incident. The learned Commissioner, on the pleadings of the parties, framed the issues and commenced the trial. Both the parties adduced their evidence. After completion of trial, the learned Commissioner held that the appellant-Insurer as well as owner of tractor were jointly liable to pay Rs. 80,640/- and interest as mentioned above and further a penalty @25% p.a. i.e. Rs. 20,160/- was also imposed.
(2.) I have heard learned counsel for the parties and perused the impugned order dated 30.10.1995 passed by the Workmen Compensation Commissioner, Udaipur and record of the case.
(3.) It is argued by the learned counsel for the appellant-Insurer that the learned Commissioner has committed a grave error of law in passing the impugned order. According to the Insurers Policy, the liability of payment of penalty amount cannot be imposed on the appellant-insurer. The appellant-insurer has paid the amount of compensation Rs. 80,640/- and 25% penalty i.e. Rs. 20160/- with interest to the claimants. It is submitted that imposition of 25% penalty upon the appellant-insurer is not just and proper because liability of this amount can be fixed upon the owner of the vehicle respondent No. 3 Meer Aalam. In the interest of justice, the liability of penalty is liable to be fixed on the owner of the tractor alone and the appellant-insurer is entitled to get the same back. The learned counsel for the appellant submitted that to this extent, the order of Workmen's Compensation Commissioner is illegal and liable to be set aside with regard to this contention, the learned counsel relied on the principle laid down in para 25 of Oriental Insurance Company Limited v. Vilas Devi 2001 ACJ 950 . Further, the learned counsel also raised the contention with regard to awarding of interest on principal compensation amount and submitted that the appellant not be made liable to pay the same.;