The central legal point established in the judgment is that the Commissioner can direct the recovery of compensation from the insurer under the Workmen's Compensation Act, and the provision for penalty and interest can only be invoked against an employer, not the insurer.

JUDGMENT :

S.C. Mohapatra, J. - These two appeals arise out of the order of the Commissioner under the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act ").

2. It is not in dispute that truck bearing No. ORJ 2159, belonging to respondent No. 2, met with an accident resulting in the death of two workmen employed by respondent No. 2 in the truck. The appellant is the insurer of the truck and respondent No. 1 in both the appeals are the legal representatives of the deceased workmen. There is no dispute in these appeals that the two workmen died in the course of their employment.

3. The Commissioner under the Act held that respondent No. 2, being the employer of the two deceased workmen, is responsible to pay the compensation u/s 3 of the Act. He, however, held that the liability of the employer can be enforced against the insurer. Accordingly, the Commissioner directed that the insurer shall deposit the compensation amount determined in the proceedings within two months, failing which the amount shall be recovered from the insurer as arrear of land revenue u/s 31 of the Act, When the amounts of compensation determined were not paid by the insurer within two months, notices were issued to it. In spite of valid service of notice, the insurer neither appeared nor deposited the amounts. Accordingly, the Commissioner levied penalty and interest on the insurer u/s 4A of the Act. Receiving the demand notices, the insurer has preferred these two appeals beyond the period of limitation with a petition for condonation of delay. After, giving opportunity to the parties to be heard in the matter of condonation of delay, the delay in preferring the appeals has been condoned.

4. Mr. S.S. Basu, learned counsel for the appellant, raised the following contentions :

(a) The insurer is not liable to pay the compensation under the Act.

(b) The levy of interest and penalty u/s 4A of the Act on the insurer is without jurisdiction.

Liability of the insurer :

In the decision, Bibhuti Bhusan Mukherjee Vs. Smt. Dinamani Dei and Others which was an. appeal under the Act, it was held that the Commissioner under the Act can direct the recovery of the compensation amount from the insurer. In another decision of this court, Subasini Panda and Others Vs. State of Orissa and Others in an appeal u/s 110D of the Motor Vehicles Act, 1939, this court observed that by virtue of Section 95 of the Motor Vehicles Act, the Tribunal constituted under the Workmen's Compensation Act is competent to determine the liability of the insurer to the extent the workman was entitled under the Act and had the workman or his successors gone to the forum under the Act, they could have got compensation as prescribed under the Act, and the insurer is bound to indemnify the owner to that extent. The contention of Mr. Basu, having thus no force, is rejected.

5. Jurisdiction of Commissioner to impose penally u/s 4A of the Act and interest :

Section 4A reads as follows :

"4A. Compensation to be paid when due and penally for default.--(1) Compensation u/s 4 shall be paid as soon as it falls due.

(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.

(3) Where any employer is in default in paying the compensation- due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent. per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent. of such, amount, shall be recovered from the employer by way of penalty."

6. A bare glance at Section 4A(3) is e