Oriental Insurance Co Ltd v. Seema & Ors

ORDER %

16.11.2011 By this appeal filed under Section 30 of the Workmen's CompensationAct, 1923 the appellantseeks to challengethe order dated

05.09.2011 passed by Shri S.C.Yadav, Deputy Labour Commissioner, Labour Department, GNCT of Delhi, Delhi. Counsel appearing for the appellant submits that learned Deputy Labour Commissioner has committed illegality by holding the appellant/insurance company as liable to pay the amount of 25% penalty. A contention has been raised by the learned counsel for the appellant that it was the liability of the employer to pay the penalty not the insurance company. In support of his arguments learned counsel for the appellant Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. placed reliance on the judgmentof the Apex Court in the case of Ved Prakash Gargvs PremiDevi iSc Ors. reportedin 1998ACJ1. I have heard the learned counsel for the appellant. In thejudgmentreliedupon bythe counselfor the appellantthe Apex Court clearly observed that penalty amount does not automatically flow from the main liability incurred by the insured employer but it is imposed on account of personal fault of the insured not backed up by any justifiable cause. During the course of arguments learned counsel has not denied the fact that an information was given by the employer to seek grant of compensationin favour of the dependant members of the deceased and therefore clearly the fault was on the part of the appellant, the insurance company not to have paid the compensation amount in favour of the dependantmembers of the deceased. Once there is a clear fault on the part of the insurance company in committing a default in paying the amount of compensation in favour of the respondent then the insurance company cannot take a plea that the learned Deputy Labour Commissioner ought to have shifted the liability for the penalty amount upon the employer. The learned Apex Court in the said judgment clearly observed that the liability of penalty would be imposed upon the insurer if there is a personal fault of the insurer and that too for no justifiable cause. The facts in the :3 present case are entirely different. Here the appellant/insurance company was at fault in not being paid the timely compensation in favour of the appellant. There is not merit in the present appeal and the same is hereby dismissed. NOVEMBER 16,2011 mb KAILASH GAMBHIR,J

% $-27 * IN THE HIGH COURT OF DELHI AT NEW DELHI FAQ 486/2011 & CM No. 20629/2011 (stay) + ORIENTALINSURANCECO LTD Appellant Through: Mr.R.C.Mahajan,Adv. versus SEEMA & ORS Respondents Through: None. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR