MISRA, J. ( 1 ) APPELLANT No. 1, a special class contractor, had taken work under the respondent No. 2. Appellant No. 2, the power of attorney-holder, was executing the work on behalf of the appellant No. 1. The respondent No. 4 was engaged as a labourer. He filed claim application before the Commissioner for Workmen's Compensation (hereinafter referred to as 'the commissioner1), Jeypore, on the allegation that while he was breaking stones under the appellant No. 2 who was a subcontractor of appellant No. 1, he sustained injury on the left eye which was damaged. Thus, he filed the claim application against appellant Nos. 1 and 2 as well as the present respondent No. 2 who had engaged the appellant No. 1. ( 2 ) THE appellant No. 1 in his written statement stated that the injured was a labourer in the tipper belonging to him and had been engaged for the purpose of loading and unloading the boulders in the tipper and he sustained injury while he was breaking the boulders for the purpose of loading in the tipper. It was further claimed by him that the tipper in question had been insured with the insurance company and the compensation, if any, should be paid by the insurance company. The insurance company which was impleaded subsequently filed written statement denying its liability. ( 3 ) THE Commissioner found that the workman had sustained the injury in an accident arising out of and in course of his employment under appellant No. 1 and directed for payment of compensation of rs. 24,402 along with interest at the rate of 6 per cent from the date of accident. The Commissioner also directed that the appellant No. 1 was liable to pay penalty of Rs. 7,320. ( 4 ) THE appeal has been filed by the contractor as well as his sub-contractor. In this appeal it is contended that the workman had been engaged for the purpose of loading and unloading of the tipper and to facilitate such loading, the work of breaking boulders which was incidental to the work of loading and unloading had to be undertaken. It is, therefore, submitted that the compensation amount should be paid by the insurance company as the tipper had been validly insured. It is further submitted that there is no justification for imposition of penalty. It is, therefore, submitted that the compensation amount should be paid by the insurance company as the tipper had been validly insured. It is further submitted that there is no justification for imposition of penalty. ( 5 ) DEALING with the last question first, it appears that there was no justification for the Commissioner to impose penalty of 30 per cent at that stage. Having regard to the facts and circumstances of the case, the direction regarding imposition of penalty of Rs. 7,320 is set aside. ( 6 ) THE next question is as to whether the insurance company is liable to pay the compensation. In this connection, it is to be pointed out that the claimant in his application had stated that he had been engaged in the work of breaking boulders. It is of course true that he has stated in his cross-examination that he was engaged in loading and unloading of the tipper. Even assuming that the workman had been engaged for the purpose of loading and unloading of tipper and the act of breaking boulders was for the purpose of loading and unloading of chips on to the tipper, it cannot be said that there was an accident involving the tipper itself. Section 147 of the Motor Vehicles Act contemplates that the insurance company may be liable to cover the liability of the owner on account of death of or bodily injury caused by or arising out of use of the vehicle in a public place. Though the act of breaking boulders to chips may be incidental for the purpose of carrying chips in the tipper, yet it cannot be said that the accident was relatable to the use of the tipper. Therefore, I am unable to accept the contention of the appellants regarding the liability of the insurance company. ( 7 ) IT appears that the appellants at the time of filing appeal had furnished a bank guarantee. It is not known as to whether the bank guarantee is still valid. If the bank guarantee is still operative, a sum of rs. 26,354 shall be paid out of it to the claimant-respondent No. 4. It is made clear that the direction regarding payment of penalty of Rs. 7,320 is waived. If the bank guarantee is still not operative, the appellant No. 1 is directed to pay the amount by end of 31. 8. 26,354 shall be paid out of it to the claimant-respondent No. 4. It is made clear that the direction regarding payment of penalty of Rs. 7,320 is waived. If the bank guarantee is still not operative, the appellant No. 1 is directed to pay the amount by end of 31. 8. 1999, failing which he will be liable to pay the amount with interest at the rate of 12 per cent thereafter. ( 8 ) SUBJECT to the aforesaid directions, the appeal is allowed in part. No costs. Appeal partly allowed.