The main legal point established in the judgment is the liability of the Insurance Company to pay interest imposed upon the insured employer by the Workmen's Commissioner under Sec. 4A(3) of the Employee's Compensation Act 1923.

JUDGMENT

1. Following substantial question of law arises in this first appeal:

1) Whether, the Insurance Company which has insured the employee against the claim for compensation arising out of the provisions of the Workmen's Compensation Act, 1923 is liable to pay award of Workmen's Commissioner imposing penalty and interest against the insured employer under Sec. 4A(3)(b) of the Employee's Compensation Act 1923.

2) Whether the Commissioner was justified in directing payment of simple interest at the rate of 12% per annum, from the date of judgment instead of 30 days from the date of accident. Facts giving rise to filing of present first appeal are as under.

2. On 2/8/2009 deceased workman met with an accident while he was on duty as a cleaner on the Motor Trailor No. MH-06-AQ-5155 belonging to opponent No. 1. During the course of treatment, the workman died on 3/8/2009. He was getting salary of Rs.4,000.00 (Rupees Four Thousand Only) per month from opponent No. 1.

3. The applicant being the widow of deceased and applicant Nos.2 to 5 being children and applicant Nos.6 and 7 being the parents of the deceased, filed claim with Commissioner of Workmen's Compensation claiming amount of Rs.4,23,580.00 .

4. The opponent No. 1/employer failed to remain present despite service of notice.

5. The insurance Company contested claim by filing written statement and submitted that opponent No. 1 was required to comply all the conditions of insurance policy. It is contended that applicants have no cause of action to claim compensation from the Insurance Company. The company is not liable to pay interest.

6. The learned Commissioner framed necessary issues. The applicants filed affidavit of applicant No.1 to prove their case. It is stated in the affidavit of evidence that on 2/8/2009 at about 3.00 a.m. the deceased was on duty. While going on on Dronogari Pune Road, near Sukhapur Bridge, the iron rods which were tied with the material of the trailor got broken, with the result trailor turned turtle and deceased sustained serious head injuries. The workman died during the treatment. Spot Panchanama below Exhibit U-16 indicates that the workman sustained serious head injuries and was admitted to nearby hospital. The evidence on record produced by applicant indicates that the deceased was working as a cleaner in motor trailor owned by opponent No. 1 and died during the course of employment. This material statement in the examination-in-chief remained unchallenged

7. The applicant No.1 stated in her evidence that the deceased was getting salary of Rs.4,000.00 (Rupees Four Thousand Only) per month and was aged 28 years. However, the applicants failed to produce any document to prove exact age of the workman. The Commissioner based on post mortem report adjudicated the age of the deceased as 30 years on the date of accident.

8. Since the applicant proved before the Commissioner that the deceased died during the course of employment and was 30 years of age getting salary of Rs.4,000.00 (Rupees Four Thousand Only) per month, considering Sec. 4(1)(a) and Schedule IV of the Workmen's Compensation Act, the applicants were held to be entitled for compensation of Rs.4,15,960..00 But while directing payment of penalty, the Commissioner directed employer to pay penalty at the rate of 25% of the amount of compensation and simple interest at the rate of 12% per Annum within one (1) month from the date of the judgment till the realization.

9. Relying on the judgment of Apex Court in the case of Ved Prakash Garg v. Premi Devi & Ors. reported in (1997) 8 SCC 1, it is submitted on behalf of the appellants that the liability to pay interest and penalty is also on the Insurance Company. The Commissioner, therefore, erroneously held that only opponent No.1 is liable to pay penalty and interest. It is submitted that instead of 25% penalty, 50% ought to have been directed to be paid. The payment of interest ought to have been directed to be paid from the date of expiry of per