The insurance company is liable for compensation and penalty under the Workmen's Compensation Act, with the court's jurisdiction limited to substantial legal questions, not factual re-evaluation.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is filed by the appellant – New India Assurance Company Ltd. against the judgment and award dated 27.03.2009 passed by the learned Workmen’s Compensation Commissioner, Kachchh at Bhuj in Workman Compensation (Fatal) Case No. 5 of 2008, whereby, the learned Commissioner has awarded compensation of Rs.4,15,960/- with interest @ 12% p.a. in favour of original claimants and also directed the appellant herein to pay penalty of Rs.2,07,980/- @ of 50% of the principal amount of compensation.

2. The short facts giving rise to present appeal are as under :

2.1 The deceased Babuji Amuji Thakore, aged 30 years was a workman employed by the respondent No.6 herein as his driver. He was working under the control of respondent No.6 and his wages were being paid by the respondent No.6. He used to work as a driver in truck bearing registration No.GJ-8- U-1409 and his monthly wages were Rs.4000=00 plus Rs.2500-00 per month as daily bhattha, in all his total wages were Rs.6,500=00 per month. The appellant is the insurer of respondent No.6. It is further the case of the appellant that on 15.06.2003 the deceased was on duty as a driver on the truck No. GJ-8-U-1409 and was going from Navlakhi to Binani and the truck was loaded with Coal. That, between the nights of 14.06.2003 and 15.06.2003 when the said truck was passing through Sarupganj, District Sirohi-Rajasthan the accompanied cleaner Manubha Bhavsinh attacked on the victim deceased Babuji Amuji and thereafter threw him below the wheel of the truck No. GJ-8-U-1409 and started the said truck and crushed him below the wheel of the truck the accident occurred as a result of which the deceased sustained severe injuries and succumbed to those injuries.

2.2 It is further the case of the appellant that, the accident occurred during the course of employment with respondent No.6 out of use of truck No.GJ-8-U-1409 of the ownership of respondent No.6. That, the claimants had represented to the respondent No.6 to pay compensation but, the appellant and respondent No.6 had not paid any compensation and therefore, the claimants had claimed Rs.4,15,960-00 being the amount of lumpsum compensation. They had also claimed penalty at the rate of 50% of the lump sum amount by way of filing Workman Compensation (Fatal) Case No.5 of 2008, whereby, the learned Commissioner allowed the claim application vide judgment and award dated 27.03.2009 and directed the appellant and respondent No.6 to pay the compensation jointly and severally as above and also directed the appellant to pay penalty.

3. Being aggrieved and dissatisfied with the aforesaid judgment and award passed by the Commissioner, the appellant Insurance Company has filed the present First Appeal under Section 30 of the Workmen’s Compensation Act, 1923.

4. Heard learned advocate Mr. Gadhia, appearing for the appellant – New India Assurance Company and learned advocate Mr. Hiren Modi, appearing for the respondent No. 6 –employer.

4.1 Though served, respondent Nos. 1 to 5 – original claimants have chosen not to remain present before the Court, hence, appeal is heard in their absence.

5. Learned advocate Mr. Gadhia, for the appellant, has submitted that as the main accident is not covered under the Act, they are not liable to indemnify the main action / accident and they are not liable to satisfy the impugned award as directed by the learned Commissioner. He has further submitted that the learned Commissioner has not considered the facts of the present case while passing the impugned award. He has further submitted that whether the act of the cleaner was considered to be an accident or it was to be considered as murder was not proved