Bhatt, J.

1. These two appeals are directed against a common judgment and award of learned Commissioner for Workmens Compensation (Commissioner for short, hereinafter) at Rajkot, in W.C.(F) Application No. 4 and 5 of 1978. The aforesaid two applications for compensation under the provisions of the Workmens Compensation Act, 1923 (Act for short, hereinafter), came to be disposed of on 19.1.1980.

2. The appellant in both the appeals, is the original opponent No. 3, in both the W.C.(F) Applications. In First Appeal No. 1386 of 1980, original opponent No. In W.C.(F) Application No. 5 of 1978 is the appellant, respondent Nos. 1 and 2 are the original applicants, respondent Nos. 3, 4 and 5 are the original opponent Nos. 1, 2 and 4 and respondent Nos. 5 to 10 are the original opponent Nos. 5 to 10, as such, who are not necessary parties in the present appeal.

3. In First Appeal No. 1369 of 1980, the appellant is the original opponent No. 3 in W.C.(F) Application No. 4 of 1978, respondent Nos. 1 and 2 are the original applicants and respondent Nos. 3, 4 and 5 are the original opponents Nos. 1, 2 and 4.

4. For the sake of convenience and brevity, the parties are hereinafter addressed to as the original applicants and opponents as stated hereinbefore.

5. The material facts giving birth to the present appeals, may be stated, at the outset so to as appreciate the merits and challenge against them. The accident in question occurred on 26.7.1977, at about 10.30 a.m. The Motor Truck No. GTB 5426, owned by the original opponent No. 3. Jayantilal & Company, and driven by deceased Garasia Udesinh was proceeding from Dhrangadhra to Rajkot. On that day, there was a collision between the said truck with another oncoming truck, bearing No. GTS 5494. On account of the said accident, the driver, Garasia Udesinh, sustained serious injuries and succumbed to the same on the same day. Deceased Udesinh was working as a driver with original opponent No. 3, who is appellant in both the appeals. The deceased was earning Rs. 250/- per month plus other allowances, as a driver. The respondents of the deceased workman, Garasia Udesinh, filed the application for compensation being W.C.(F) Application No. 4 of 1978 before the learned Commissioner, at Rajkot by invoking the aids of the provisions of Section 3 of the. Original Applicant No. 1 was the widow of the deceased and original Applicant No. 2 was the minor daughter of the Applicant No. 1. They claimed an amount of Rs. 69,000/- by way of compensation for the unfortunate accidental demise of their bread-winner, together with penalty, interest and costs, under the.

6. It may be mentioned at this stage that the application for compensation under Section 3 of thewas also filed by seven applicants being W.C.(F) Application No. 5 of 1978. One Ranjanba Akhubha, also claimed to be the widow of the deceased Garasia Udesinh. She also filed the said application on behalf of her four minor children. The parents of the deceased were also joined in the said application. Thus, Original Applicant No. 6, Bhagwanji Naranji and Original Applicant No. 7, Jivuha Mahabhai, in W.C.(F) Application No. 5 of 1978 were the parents of the deceased. Initially, both the claim applications were filed against the original opponents Nos. 1 and 2. However, in view of the dispute raised by the original opponent Nos. 1 and 2, original opponents Nos. 3 and 4 were impleaded in both the applications being second truck party and the insurer of the said truck. It appears that the original opponent Nos. 1 and 2 in both the claim applications raised the contention that the other truck party and the insurer were respondents. Because of that, owner of both the trucks and insurer of both the vehicles came to be impleaded. Thus, there were four opponents in each application.

7. Opponents appeared and resisted both the claim applications.

8. In view of the contentions raised by the parties before the learned Commissioner, issues came to be framed, at Ex. 13.

9. Having examined the facts and circumstances so also the evidence on record, the learned Commissioner came to the conclusion that the deceased Garasia Udesinh, who was a workman of original opponent No. 3 in both the applications, died due to accidental injuries, in the course of his employment. The learned Commissioner also found that the deceased was earning Rs. 250/- per month. He was also pleased to hold that Original Applicant Nos. 1 and 2 in W.C.(F) Application No. 4 of 1978, being the widow and minor daughter of the deceased Garasia Udesinh and Original Applicant Nos. 6 and 7 in W.C.(F) Application No. 5 of 1978, being the parents of deceased Garasia Udesinh, were dependents of the deceased Garasia Udesinh and, therefore, they are entitled to compensation under the. The learned Commissioner was pleased to award Rs. 18,000/- by way of compensation in favour of the dependents of the deceased Garasia Udesinh against the owner of the Truck No. GTB 5426, Jayantilal & Company and the insurer of the said truck, National Insurance Company Limited. The learned Commissioner further directed that the owner of the Truck No. GTB 5426 shall pay Rs. 9,000/- by way of penalty and further to pay interest at the rate of 6 per cent per annum on the amount of Rs. 18,000/- from 26.7.1977, i.e. from the date of accident. The amount of compensation awarded to the dependents came to be apportioned between the four claimants as follows:

1.

Garasia Rajvirba Udesinh

Rs. 10,000/-

2.

Minor Ilaba Udesinh

Rs. 10,000/-

3.

Bhagwanji Naranji

Rs. 3,500/-}

Plus amount of

4.

Jivuba Maghabhai

Rs. 3,500/-}

of accrued interest

Thus the claim of Original Applicant Nos. 1 to 5 in W.C.(F) Application No. 5 of 1978 came to be rejected. It was found by the learned Commissioner that they were not dependents of the deceased Garasia Udesinh. The claim against the original opponents Nos. 1 and 4 in both the claim applications came to be rejected. Thus, the learned Commissioner found that the owner of the Truck No. GTB 5426, Jayantilal & Company, which is appellant in both the appeals, is liable to pay compensation of Rs. 18,000/- along with the insurer, original opponent No. 2 and further held that the liability for the payment of penalty under Section 4A of theand the payment of interest is only of owner of the offending truck i.e., original opponent No. 3.

10. Being aggrieved by the said judgment and award in both the claim applications, the original opponent No. 3 in both the original applications, owner of the Truck No. GTB 5426, has, now, come up before this Court challenging the legality and validity to the extent of exonerating the Insurance Company from the payment of the amount of penalty and interest at the rate of 6 per cent per annum, by invoking the aids of the provisions of Section 30 of the.

11. Learned Counsel for the appellant in both the appeals has raised the contention that the Insurance Company is also liable for the payment of penalty and interest on the amount of compensation. Thus, it is seriously argued that the learned Commissioner has committed serious error in holding the Insurance Company of the truck involved in the accident not liable for the payment of the amount of penalty and interest at the rate of 6 per cent per annum. In this connection, it may be noted that the Insurance policy is produced at Ex. 56, it is contended that the appellant, original opponent No. 3, had intimated to the Insurance Company about the factum of accident by sending the claim form. The said claim form is produced, at Ex. 57. It is dated 11.1.1978. Relying on this claim form, it is contended that the Insurance Company was informed about the factum of accident and, therefore, the observations of the learned Commissioner, in para 16 of the award, are erroneous. The learned Commissioner has observed in para 16 of the award that the owner of the truck, the appellant before this Court, had full knowledge about the accident which occurred on 26.7.1977. Despite that, the owner of the truck failed to pay the amount of compensation as required under the provisions of the. It is further observed that not only that but the owner of the truck failed to inform the Insurance Company by sending the claim form duly filled in by him in respect of the accident. It is true that the claim form duly filled in by the owner of the truck was sent to the insurer- National Insurance Company Limited, which is produced at Ex. 57, which was sent on 11.1.1978. The learned Commissioner has observed that the said claim form is not under the Workmens Compensation Act, 1923, but it is under the Motor Vehicles Act. That matter will not assume much significance in the present case. The accident in question occurred on 26.7.1977 and claim form was sent to the Insurance Company on 11.1.1978.

12. Under Section 4A(3) of the Act, where any employer is in default in paying the compensation due under the 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. It is apparent from the above provision that where any employer is in default in paying the compensation due under the within one month from the date it fell due, the Commissioner can direct for payment of penalty not exceeding 50 per cent of the amount of award and interest at the rate of six per cent per annum. Thus, the liability is fastened under the statute on the employer. When an accident arises out of and in the course of the employment, the employer becomes statutorily, liable for payment of compensation as soon as the aforesaid injury or death is caused to the workman. If the employer fails to make even provisional payment under Section 4A(2) of the Act, but challenges the jurisdiction of the Commissioner and/or the claim of the workman, he is liable to pay interest and penalty. Having regard to the provisions of Section 4A(3) of the Act, it is very clear that it is beneficent provision made for the benefit of the workmen employees and having regard to the scheme of the, the provision for payment of interest and penalty have been enacted with a view to deter the employer from taking facile pleas and unreasonable defence for avoiding payment of compensation which statutorily becomes payable. So, while reading the entire section, it is the scheme of the said provisions of the, that the employer or the master should immediately make good the loss suffered by the workman. Thus, it is crystal clear that the employer is bound to pay the compensation payable under the. So, a statutory duty is cast on the employer to pay or deposit the amount of compensation payable. If the employer fails to pay the amount of compensation and commits default without any reasonable cause or justification, the Commissioner is entitled to award penalty, not exceeding 50 per cent of the amount of compensation. Therefore, the learned Commissioner has, rightly, awarded the full amount of penalty and interest on the amount of compensation and finding on this point by the learned Commissioner is fully justified.

13. No doubt, in this appeal, no challenge is made against the amount awarded by way of compensation. However, it is seriously challenged that the learned Commissioner ought to have held the National Insurance Company Limited, being the insurer of the offending truck, liable for payment of penalty also. This contention, in view of the facts of the present case and relevant provisions of the, cannot be sustained. The contention is that in view of the insurance policy, produced at Ex. 56, the appellant, original insured-owner of the offending truck, would be entitled to be indemnified by the Insurance Company, even for the amount of penalty and interest on the amount of compensation. After having carefully examined the terms and conditions, of the Insurance policy, at Ex. 56, and the relevant provisions of the, this Court is of the clear opinion that the liability of the Insurance Company will not arise for the payment of the amount of penalty. On, account of the clear infraction or violation of the statutory provisions of Section 4A(3) of theby the employer, the learned Commissioner was pleased to impose penalty on him. The insurance policy at Ex. 56, is under the provisions of the Motor Vehicles Act, 1939. The offending truck being a public carrier, was insured with National Insurance Company Limited. The insurance coverage is in respect of the public carrier being Truck No. GTB 5426. No doubt, there is additional coverage of paid driver and cleaner so also of six collies on payment of extra premium. Thus, the Insurance policy is under the provisions of the Motor Vehicles Act, 1939, covering the risk of the driver. The deceased Garasia Udesinh was driver of the said truck. The Insurance policy assures that the Insurance Company shall indemnify the owner or the insurer for all liabilities which might flow from the type of risk covered. The penalty which posed on the owner of the truck is for default in making payment of compensation within the prescribed time. Therefore, the Insurance Company cannot be asked to indemnify the insurer on that score. The penalty under Section 4A(3) of theis imposed on the owner of the offending truck for remaining indifferent to his statutory liability to make payment in time. If, by his gross negligence, the insured or the owner invites or incurs additional liability or responsibility for having violated the statutory requirement, then the Insurance Company cannot be directed to indemnify the insured on that count. The view which I am inclined to take at this juncture is very much reinforced by the decision of the Division Bench of this Court rendered in the case of Gautam Transport Bhavnagar v. Jiluben Huseinbhai and Ors. reported in : 1989 ACJ 587. [LQ/GujHC/1985/352]

14. In view of the aforesaid factual and legal set up, the contention of the appellant that the Insurance Company should have been held liable for the payment of penalty and also the interest at the rate or 6 per cent per annum on the amount of compensation, cannot be sustained as it is without any substance.

No other contention is raised.

15. In the result, being meritless, both these appeals are required to be dismissed with costs, and hence appeals are dismissed with costs accordingly.