The appeal court can only intervene on substantial questions of law, preserving the Commissioner’s fact-finding authority while holding the employer liable for compensation penalties, with insurance covering interest payments.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is filed by the appellant against the judgment and award dated 18.05.2007 passed by the Ex Officio Commissioner for the Workmen's Compensation Act, Surat in Workmen's Compensation (Fatal) Application No.110 of 2005, whereby the learned Commissioner has awarded compensation of Rs.3,01,774/- jointly and severally on present appellant and respondent No.4 insurance company and held present appellant liable for the interest @ 12% p.a. from the date of accident till deposit of the amount and 50% penalty of Rs.1,50,887/- is also imposed on the appellant.

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

2.1 The appellant herein is doing business of transportation and having Truck bearing registration No. GJ-5-U- 3597. The deceased-husband of respondent No.1 was working with the appellant herein as driver. On 18.11.2005, as per direction of appellant, the deceased went to Chalthan Sugarcane Factory for unloading the sugarcane. At that time, at about 9.15 o'clock when he reached Saniya Kande village, electric line passes through road was touched on the top of the truck. As a result of which, the husband of respondent No.1 died on the spot. Therefore, present respondent Nos. 1 to 3 being legal heirs of the deceased - driver had filed the Workmen's Compensation Case being Workmen's Compensation (Fatal) Application No. 110 of 2005 before the learned Commissioner for Workmen's Compensation whereby, the learned Commissioner has awarded compensation of Rs.3,01,774/- in favour of present respondent Nos. 1 to 3.

2.2 In view of the above facts, the original claimant has filed present appeal.

3. I have heard Mr. Hiren Modi, learned advocate for the appellant and Mr. H.G. Mazmudar, learned advocate for respondent No.4. Though served, respondent Nos. 1 to 3 have chosen not to remain present before this Court. With consent of the learned advocates appearing for both the sides, the appeal is taken up for final disposal today.

4. Learned advocate for the appellant has submitted that present appeal is filed mainly on the ground that the learned Commissioner has not properly appreciated the facts of the case and thereby, the learned Commissioner has committed serious error of law and on facts both while passing the impugned judgment and award. He has also submitted that the impugned judgment and award is erroneous, illegal, unjust and the same may be quashed and set aside or the same may be appropriately modified. He has submitted that so far as the liability of the present appellant to pay the penalty @ 50% i.e. Rs.1,50,887/- is concerned, the same is on very higher side and therefore, under such circumstance, the impugned judgment and award deserves to be quashed and set aside or it may be appropriately modified.

4.1 Learned counsel for the appellant has further contended that learned Commissioner has wrongly considered the salary of the deceased and therefore, the impugned judgment and award is bad in law. In support of his submission learned Counsel for the appellant has contended that the respondents Nos. 1 to 3 have not proved the income of the deceased, age of the deceased in its strict proof. However, he has restricted his argument to the effect that so far as the penalty imposed upon the appellant @ 50% and the interest @ 12% are concerned the same is on higher side and therefore, the impugned judgment and award be quashed and set aside. He has further submitted that the learned Commissioner has committed error of law and on fact both and thus, the impugned judgment and award passed by the learned Commissioner is unjust, arbitrary and ill