The primary liability of compensating a workman under the Workmen's Compensation Act rests on the employer, and the insurer has no primary liability.

Dipankar Datta, J.

The respondent no. 1 (hereafter the workman) approached the Commissioner, Workmen's Compensation, Durgapur under the Workmen's Compensation Act, 1923 (hereafter the Act) with an application in Form 'F' under rule 20 of the Rules framed thereunder claiming compensation of Rs.89,712/-. In his application, registered as Claim Case No. 104 of 1997, G.K.W. Limited, Wheels Division (hereafter G.K.W.) and the United India Insurance Co. Ltd. were impleaded as opposite party nos. 1 and 2 respectively. The pleaded case was that while on duty in the production department of G.K.W. on January 9, 1996, suddenly the workman's right hand got trapped in a running machine. As a result thereof, he sustained grievous injuries on his right hand and more particularly his right thumb. He was treated in different hospitals and ultimately, he was assessed to have suffered 40% permanent partial disability of the thumb. The workman on the date of accident claimed to be 39 years old and was in receipt of salary of Rs.3000/- per month. Since the authorities of G.K.W. did not consider the prayer for payment of compensation, the workman was thus forced to approach the Commissioner.

2. The claim of the workman was contested by both the parties. G.K.W. contended that the workman being covered by a policy of the opposite party no.2 in the application (hereafter the insurer), question of payment of compensation by G.K.W. did not arise. The insurer contested the application by contending that the primary liability of compensating the workman ought to be shouldered by G.K.W in the capacity of employer of the workman.

3. The Commissioner by his judgment and order dated September 2, 2003 allowed the application, without costs. Without dealing with the objection raised by the insurer, the Commissioner fastened it with the liability of paying Rs.74,760/- to the workman by issuing a cheque within a month from date.

4. The present appeal at the instance of the insurer registers a challenge to such judgment and order.

5. Before we advert to the contentions raised by the parties, we place on record that by an order dated April 30, 2004 passed by a coordinate Bench, the respondent workman was allowed to withdraw one half of Rs.74,760/- pursuant whereto such amount has been withdrawn by him. It is also placed on record that the other half of Rs.74,760/- has been kept in deposit in the office of the Commissioner.

6. An objection to the maintainability of this appeal has been raised by the learned advocate for the respondent no.1/workman. According to him, the appeal does not involve any substantial question of law and it is not maintainable in view of section 30 of the Act.

7. Mr. Pahari, learned advocate for the appellant-insurer, contested the objection by contending that the appeal does involve a substantial question of law i.e. whether an insurer is under any statutory liability to compensate an insured workman who approaches the Commissioner under the Act or it is the primary liability of the employer to compensate.

8. Mr. Pahari submitted that considering the decisions of the Supreme Court reported in (2002) 9 SCC 450 [L.R. Ferror Alloys Ltd. v. Mahavir Mahto], (2006) 5 SCC 200 [P.J. Narayan v. Union of India], and 2006 (5) SCC 192 [New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya], three separate coordinate Benches of this Court in the decisions reported in 2012 ACJ 1654 [Sukro Munda v. National Insurance Co. Ltd.], 2012 (3) T.A.C. 50 (Cal.) [Smt. Murahi Devi v. New India Assurance Co. Ltd.], and 2015 (2) T.A.C. 740 (Cal.) [New India Assurance Co. Ltd. v. Narayan Basu] have authoritatively held bearing in mind the provisions of the Act that the initial responsibility of payment of compensation is cast on the employer and that upon payment of such compensation, the employer may seek reimbursement from the insurer; in other words, the insurer has no primary liability. It was, accordingly, urged that the Commissioner fell in error in d