1. Heard learned Advocate Ms. Hina Desai for appellant insurance Company.

2. This appeal is filed by Insurance Company under Section 30 of Workmen Compensation Act challenging judgment and order passed by WC Commissioner, Bhavnagar in WC (Fatal) Case NO. 10 of 1999 Exh. 20 dated 11th February, 2005 wherein WC Commissioner has partly allowed WC (Fatal) Application and directed opponents No.1 and 2 that they should jointly and severally deposit an amount of compensation of Rs.75940.00 within 30 days from the date of receipt of said judgment for making payment thereof to dependents of deceased. No order as to costs was passed by WC Commissioner. Commissioner has also not granted any amount of penalty as well as interest on the amount of compensation considering the fact that after death of deceased in accident on 11.3.96, claim petition no. 315 of 1996 was filed initially by claimants and after passing of judgment therein on 17.12.98, claimants filed application for compensation under the WC Act and, therefore, they are not becoming entitled for interest and penalty on the amount of compensation.

3. This matter was heard by this Court on 6th April, 2009. After hearing learned Advocate Ms. Hina Desai for appellant, in presence of learned Advocate Ms. Hina Desai, oral dictation in this matter was given by this Court. Subsequently, copy of award passed by MACT Bhavnagar in MACP No. 315/96 decided on 17.12.98 has been placed before this Court by appellant and same has been considered by this Court and it is found that therein, claims tribunal has awarded Rs.99600.00 with 15% interest in favour of claimants, therefore, matter would require re-hearing. Dictation given by this Court in this matter earlier on 6.4.2009 was not yet signed by this court and it had remained only dictation without transcription and after considering award passed by claims tribunal Bhavnagar, therefore, matter was kept for further hearing on 13.4.2009. On 13.4.2009, after hearing learned Advocate Ms. Hina Desai for appellant, following order was passed by this Court:

1. This matter was heard by this court on 6th April, 2009. On the basis of submissions made by learned Advocate Ms. Hina Desai, dictation was given. At that time, award passed by claims tribunal was not on record but it has been subsequently placed on record, therefore, after giving dictation, this court has considered award passed by claims tribunal at Bhavnagar in Claim Petition No. 315 of 1996 which was filed on 30.5.1996 and decided on 17th December, 1998. Heirs and legal representatives of deceased Jamalbhai Nanjibhai then filed this claim petition against truck driver, truck owner and insurance company of truck New India Assurance Co. Ltd., Bhavnagar as well as against employer Ajay Jaswantsinh Raol who was owner of the tempo which was driven by deceased and United India Insurance Co. was insurance company of tempo.

2. In initial award passed by claims tribunal in claim petition no. 315 of 1996, claims tribunal partly allowed claim petition and directed respondent no.1 and 2 means driver and owner of truck jointly and severally to pay Rs.99,600.00 from the date of claim petition with 15 per cent interest. Thereafter, claimant has filed application before the Workmen's Compensation Commissioner being Workman Compensation (Fatal) Case No.10 of 1999 only against owner of tempo Ajay Jaswantsinh Raol means employer of deceased Jamalbhai and United India Insurance Company i.e. Insurance company of tempo and in those proceedings, owner of truck, driver of truck and insurance company of truck were not joined as parties. In objection was raised by insurance company under section 167 of Motor Vehicles Act on the ground that once claim petition is filed means choice has been exercised, then, heirs and legal representatives of deceased Jamalbhai are not having right to file application before Workmen's Compensation Commissioner for claiming compensation under the WC Act. Preliminary objection rai