JUDGMENT :

This Civil Miscellaneous Appeal is filed under Section 30 of the Workmen Compensation Act, 1923 (in short ‘the Act’) against the impugned final notice dated 22.10.2007 issued in W.C.No.11 of 1992 on the file of the Commissioner for Workmen’s Compensation (DCL), Guntur.

Parties before the learned Commissioner:

2. The appellant herein was the Opposite Party No.2/Insurance Company, the respondents Nos. 1 to 3 herein were the applicants and the respondent No.4 herein was the Opposite Party No.1/owner of the offending vehicle before the learned Commissioner. For the sake of convenience and understanding, the parties are referred to as they were arrayed before the learned Commissioner.

3. Case of the Applicants

Applicants are the wife, son and daughter of the deceased Venkata Reddy, who died in the course of employment on 28.02.1980 while working as cleaner on the oil tanker bearing No. AP 7U 0369 of Mr. KasiViswanadham (O.P.No.1). Against their claim of Rs.60,734.80/-, the learned Commissioner granted Rs.43,469/- and directed Opposite Parties to deposit the amount within 30 days vide Order dated 15.09.1995.

4. Events post award:

i. Opposite Party No.2 deposited Rs.39,000/- leaving balance of Rs.4469/-.

ii. Learned Commissioner vide Order dated 06.11.1996 directed Opposite Party No.2 to deposit Rs.4,469/- and interest at 12% p.a., from the date of accident i.e., Rs.34,286/- and an amount of Rs.21,700/- and 50% penalty totallying Rs.60,455/- by way of Demand Draft rejecting the plea of O.P.No.2.

iii. O.P.No.2 deposited Rs.4,469/- only.

iv. O.P.No.2 filed O.S.No.1310 of 1998 on the file of II Addl. Junior Civil Judge, Guntur, seeking declaration that the order dated 06.11.1996 is illegal, which was dismissed.

v. Appeal preferred with delay petition, it was dismissed.

vi. O.P.No.2 deposited Rs.34,286/- on 28.03.2002 vide cheque.

vii. Thereafter, on 06.10.2005, the learned Commissioner issued Notice to O.P.No.2 to deposit Rs.59,679/- by way of D.D. and also final Notice dated 02.02.2006 to deposit the amount within seven days.

viii. On the Memo filed by the claimants, the Learned Commissioner issued notice dated 22.10.2007 directing O.P.No.2 to deposit the amount, which is impugned in this Appeal.

5. Grounds of Appeal:

The impugned final Notice issued by the learned Commissioner was challenged by the Insurance Company on the ground that the learned Commissioner ought not to have fastened liability on the insurance company for the payment of interest and penalty.

6. Arguments advanced at the Bar:

Learned counsel for the appellants would submit that interest and penalty cannot be fastened against the insurance company. Refuting the same, the learned counsel for the respondents submits that the liability of insurance company being indemnity they are liable to pay interest as well as Penalty since the liability is joint and several. While making submissions, the learned counsel for the appellant would represent that they have already deposited the amount and hence, there may be a direction to the learned Commissioner for making proper calculation if any excess is paid, it has to be returned to the Appellant.

7. The substantial question of law framed by the appellant are extracted infra:

(a) Whether Dy. Commissioner can impose penalty and interest on Insurance Company under Section 4-A (3) of Workmen Compensation Act, 1923?

(b) Whether Dy. Commissioner ordered to pay the interest on penalty amount only on to the insurance company?

(c) Whether Dy. Commissioner can pass final notice only on the Insurance Company to pay an amount of Rs.72,438/- when Insurance Company filed a Counter in which it is specifically mentioned that Insurance Company has paid all together Rs.77,755/-