Point of Law: It was for claimant to have opted for claim of compensation either under Workmen’s Compensation Act or under Motor Vehicles Act.

JUDGMENT :

Satyen Vaidya, J.

By way of instant appeal under Section 30 of the Employees Compensation Act, the Appellant/Insurer has assailed Award dated 8.7.2010 passed by the Commissioner under Workmen Compensation Act-cum-SDO (C), Sundernagar, District Mandi, H.P. in Case No.16/2008, whereby respondent No.1 herein/claimant has been awarded a sum of Rs.5,41,910/- as compensation on account of death of Sh. Santosh alias Ganpat Ram.

2. Brief facts necessary for adjudication of appeal are that respondent No.1 (hereinafter referred to as the ‘claimant’) applied under Section 22 of the Employees’ Compensation Act (for short, ‘the Act’) to the Commissioner under the Act for compensation on account of death of her son Sh. Santosh alias Ganpat Ram. The deceased Sh. Santosh alias Ganpat Ram was a workman employed by respondent No.2 (hereinafter referred to as the ‘employer’) as a helper on JCB Machine No. HP-51B-3921. On 10.07.2008, the deceased was working on the aforesaid machine and in the meanwhile, retaining wall of the road on which the machine was parked gave way, causing machine to roll down alongwith the deceased. Consequently, the deceased received fatal injuries and died.

3. The appellant (hereinafter referred to as the ‘insurer’) was impleaded as respondent before the Commissioner as the employer had purchased a policy of insurance from the insurer having coverage for 15 of his workmen.

4. The Commissioner having found proofs in respect of the employment of the deceased with employer, his age, monthly wages and cause of accident etc. proceeded to award a compensation of Rs.4,36,940/- besides interest to the tune of Rs.1,04,870/- in favour of the claimant.

5. Dis-satisfied with the award passed by the Commissioner, the insurer has filed this appeal. On 22.11.2010, the appeal was admitted on following substantial questions of law:

(i) Whether the learned Commissioner below has erred in directing the appellant company to pay interest @ 12% per annum from one month after the date of the accident till the actual amount is realized. Whether the learned Commissioner below has erred in awarding interest to the petitioner more particularly when as per policy there is no liability of the appellant to pay interest?

(ii) Whether the learned Commissioner has gravely erred in fastening the liability to pay compensation upon the appellant as the JCB machine which met with an accident and which resulted in death of the deceased, was not insured with the appellant?

(iii) Whether the learned Commissioner has erred in passing orders to proceed against the appellant under section 4-A(3)(b) of the Workman’s Compensation Act within 30 days from the receipt of copy of the Award?

6. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

7. Learned Senior counsel representing the Appellant/Insurer has raised following contentions at the time of hearing:

(i) The Commissioner was not justified in awarding interest against the insurer in view of exclusion clause contained in the policy of insurance.

(ii) The assessment of wages of deceased @ Rs.4000/- per month by the Commissioner was against the terms of policy whereby the employer had insured 15 employees having accumulated charges of Rs.4,32,000/-. As per the insurer, the deceased could be given benefit of pro-rata wages in terms of the disclosure made in the insurance policy.

(iii) The employer had also purchased a policy of insurance from respondent No.3 i.e. National Insurance Company Ltd. under the Motor Vehicles Act and the claimant could have been granted compensation by fastening the liability on respondent No.3.

8. Substantial question of law No. (ii), as noticed above, appears to have been framed wrongly. It is not the case of appellant/ insurer that the employer had not purchased policy of insurance from it. Rather, the appellant/insurer has itself placed reliance upon the policy of insurance placed on record as Ext. R-3 in support of its conten