1. Misc. Appeal No. 805/2005 filed by the employer and Misc. Appeal No. 1183/2005 filed by the workman/claimant are being disposed of by this common order as both the appeals arise out of one and the same accident and are directed against the award dated 28.04.2005 passed by Commissioner for Workmen's Compensation, Labour Court, Rajnandgaon (for short, 'the Commissioner') in Case No.19/W.C. Act Non Fatal/2004 granting compensation to the extent of Rs. 64,559/- and 45% penalty (Rs. 29,052/-) along with interest @ 6% per annum.

2. Facts necessary for disposal of these appeals are as under:-

(2.1) Original claimant- Manoj Yadav (since deceased), during the course of employment of employer Dinesh Kumar Golchha, while driving the car bearing registration No. CG-08-0178 suffered an accident, while he was coming to Rajnandgaon from Durg leading to grevious injury; he was removed to the District Hospital, Rajnandgaon and at a later point of time, he was shifted to Kedar Hospital, Raipur and he has been certified to be 40% permanent disabled leading to filing of claim petition under Section 22 of the Employee's Compensation Act, 1923 (for short 'the Act of 1923') before the Commissioner stating inter alia that he is skilled driver, aged about 35 years and earning Rs.4,800/- per month and, therefore, he is entitled for Rs. 4,72,944/- along with interest & penalty from the employer and Insurance Company.

(2.2) The Commissioner noticed the employer - Dinesh Chand Golchha as well insurer of the vehicle i.e. the Oriental Insurance Company Limited on the said application for compensation.

(2.3) On being noticed, the employer filed his written statement stating inter alia that workman- Manoj Yadav was working as a driver in his establishment and getting salary of Rs.1,200/- and Rs. 200/- as allowance, total Rs. 1,400/- per month. It was further pleaded that if any, liability is determined, vehicle being insured, the said amount has to be indemnified by the Insurance Company as all the relevant papers has been brought to the notice of Insurance Company but the Insurance Company did not take any step to make payment of compensation, therefore, the Insurance Company is liable to make payment of compensation to the claimants.

(2.4) Learned Commissioner, after close scrutiny of the evidence available on record, has recorded following findings:-

(i) That, the workman/claimant had sustained fracture in his right elbow resulting into permanent disability to the extent of 40%.

(ii) That, the workman/claimant was earning Rs. 1,400/- per month, aged about 37 years and applying the relevant factor of 192.14, is entitled for Rs. 64,559/- along with interest @ 6% per annum from the date of filing of claim petition.

(iii) That, the employer is liable to make payment of penalty to the extent of 45% as the employer did not take any steps to make payment of compensation as provided in Section 4(A)(3) of the Act of 1923 i.e. 45% of the amount of compensation, which comes to Rs. 29,052/-.

3. Feeling aggrieved and dissatisfied with the award passed by the Commissioner, the claimants have filed Misc. Appeal No.1183/2005 under Section 30 of the Act of 1923 claiming that the original claimant/workman has suffered injuries in the accident resulting in permanent disability to the extent of 100% as well as penalty imposed is not commensurate with the disability suffered by the appellant/claimant, in which, the respondent/Oriental Insurance Company Limited has filed cross objection stating inter alia that the Insurance Company is not liable to make payment of compensation. The employer has filed M.A. No. 805/2005 stating that while imposing penalty, opportunity of hearing under proviso to Section 4 A(3) of the Act of 1923 has not been afforded to the employer, therefore, award imposing penalty deserves to be set aside.

4. Mr. Abhishek Sharma, learned counsel appearing for the workman/claimant would submit that the learned Commissioner has fallen into error in holding that