JUDGMENT 1. - This appeal is directed against the judgment of learned Single Judge dated 13.5.2003 dismissing the appeal filed by the appellants against the rejection of their claim under the Workmen Compensation Act, 1923 (for short the "Act of 1923) by the Workmen Compensation Commissioner. 2. The husband of the appellant No. 1 and son of appellant No. 2 died as a result of drowning on 25.11.1990. Deceased Lokpal Singh was about 35 years at the time of death. According to the application dated 15.3.1991 filed before the Workmen Compensation Commissioner, he had died by drowning while travelling on duty on 25.11.1990, which was Sunday. The claim was lodged under the provisions of the Act, 1923 and was stated to be for a sum of Rs. 94,588/-. The monthly wages, according to the appellants, drawn by the deceased from the respondent M/s. Mahendra Machinery Corporation, Banswara under whom he was employed, was stated to be Rs. 1200/- per month. The claim was preferred through the appellant No. 2 Ishwar Singh, father of the deceased, as power of attorney holder of appellant No. 1 and for himself. 3. The respondent employer filed his reply to the application while it was admitted that the deceased Lokpal Singh was in his employment but it was stated that on 24.11.1990 i.e. Saturday, deceased Lokpal Singh was on leave for the purpose of going to his in-laws place at Ratlam and he left the establishment after taking leave for 24.11.1990, wherefrom he has not returned. With this premise, it was pleaded that the death of Lokpal Singh did not arise out of or in the course of his employment because on the date of his death, he was on leave and was not travelling for the purpose or in the course of his employment. It was stated that 25.11.1990 being Sunday, the establishment of the employer was observing a weekly holiday and on that day there was no reason for Lokpal Singh to be at the place where he died during the course of his employment. It was stated in the reply that monthly income of the deceased was Rs. 500/- only and not Rs. 1200/- and estimated age of deceased was 40 and not 35 years. It was stated in the reply that monthly income of the deceased was Rs. 500/- only and not Rs. 1200/- and estimated age of deceased was 40 and not 35 years. Some payment vouchers of salary allegedly made to Lokpal Singh were produced by the respondent, apart from the certificate of registration under the Shop and Establishment Act, 1958 renewed upto 31.12.1991 showing Sunday as a weekly holiday. Attendance register for October and November, 1990 was also produced as Ex. 6. 4. On behalf of appellants the first Information Report lodged with the Police Station Daanpur on 25.11.1990 by Nakuda, which was received by the Police Station as per its endorsement at 4.15 p.m. Panchnama was I conducted on 26.11.1990 at 6.45 a.m., Post Mortem report showing the cause of death as drowning and the death certificate were produced. 5. Smt. Kiran widow of deceased, Bhagwati Lal, Arjun and Nakuda were examined as witnesses on behalf of appellants. On behalf of respondents, Mahendra Jain, proprietor of M/s. Mahendra Machinery Corporation, Deepak Srivastava, Junior Engineer in the office of Director, Agriculture, and at the relevant time posted at I.W.P.P, Udaipur and Naresh Punjabi were examined. 6. The Workmen Compensation Commissioner in his order dated 29.11.1994 found that the appellants have failed to prove that on the date of death, deceased was in the employment of respondent M/s. Mahendra Machinery Corporation and that the appellants have failed to prove that accident arose out of or in the course of employment. He further found that the deceased was on leave on 24th November, 1990 and he was not employed for the purpose of fitting machines on the pumps. The fact that death was caused on account of drowning was not in dispute. On the aforesaid finding, the claim under the Workmen Compensation Act, 1923 was its rejected. 7. The learned Single Judge, on appeal, agreed with the learned Commissioner and dismissed the appeal. Hence, this special appeal. 8. Tile Workmen Compensation Commissioner has primarily relied on the fact that establishment of the respondent was registered under the Shop and Establishment Act and according to which Sunday was a weekly holiday and as stated by the employer the deceased had gone to Ratlam at his in-laws place on Saturday and, therefore, there was no reason for the deceased discharging some work of his employer or returning to the place of his employer. In this connection, he has also placed reliance on the attendance register, which is prepared by the employer and has been placed on record along with reply. Reference was also made to the statements of Deepak Srivastava, who was a Government servant, and Naresh Punjabi. While considering issue No. 2 also, the learned Commissioner referred to the documents produced by respondent for the purpose of coming to the finding that travelling by boat was not authorised by the employer and duties were discharged through road transport. 9. Surprisingly, the learned Commissioner has not referred to any statements made by witnesses of the appellants nor the documents produced by appellants, which included the FIR lodged on the very day showing that the husband of the appellant No. 1 had died by drowning. FIR has, been lodged by the person who was travelling with him in the boat from the place he went aboard. From the perusal of the order, it appears that primarily the Commissioner was carried away with the fact that the employer has engaged the deceased for delivery of goods to various places and the goods were being delivered through road transport by jeep or some other medium of road transport and for the purpose he had no occasion to travel by boat, particularly keeping in view the day death has been caused was Sunday, the story propounded that deceased had taken leave on Saturday for going to Ratlam to visit his in-laws place has been accepted as per the statement of the employer and one of his witnesses. 10. Learned Single Judge accepted the same line of reasoning about the work assigned to the appellant's husband according to the statement of the employer. 11. Learned counsel for the appellant has urged that the Workman Compensation Commissioner as well as the Learned Single Judge has not taken into consideration the contemporaneous happening which were unembellished by any future action that could be taken by the dependents of the deceased or the stand taken by the employer and the very important testimony of the respondent's own witness viz. Deepak Srivastava has been ignored. Deepak Srivastava has been ignored. The Workman Compensation Commissioner as well as learned Single Judge has also ignored the material available on record suggesting that the deceased was made to stay back where the fitting work for installing i pump was going on and which was left unfinished on 23.11.1990 and there was no occasion for the deceased to have taken leave on 24.11.1990, which was Saturday and from which place there was no transport available except to take boat. 12. Learned counsel for the respondents has supported the finding reached by the Workman Compensation Commissioner as well as learned Single Judge and has urged that these findings do not call for interference. 13. Having considered the rival submissions and the record of the Workman compensation Commissioner, we are of the opinion that this appeal deserves to be allowed for the reasons stated hereinafter. 14. The very important material which has not been referred to in both the orders is the FIR submitted by Nakuda at the Police Station on 25.11.1990 itself and which was registered at 4.15 p.m. Nakuda, who also appeared in the witness box and supported the chain of events says that he is resident of village Paati Nagra which is within the jurisdiction of Police Station Daanpur. He has stated in his report that in his village Lift Project was being undertaken and one person has come from D.R.D.A. along with the deceased for the purpose of fitting engines, who has fitted two engines on 23.11.1990. He has further stated in his report that for the purpose of fitting engines Overseer Deepak Srivastava has also come, who has returned in the same evening. In the report, it has been further stated that Mahendra Kumar Jain, Proprietor of the respondent firm has also returned to Banswara on the very same evening. He further stated that Lokpal Singh, who stayed in the village, was also in the village a day before i.e. Saturday and he requested him in the morning that he may be sent by boat on the other side of the river and from Katumbi he will take bus. At his request, he boarded the boat which was lying there and which was usually used for fishing. At his request, he boarded the boat which was lying there and which was usually used for fishing. While they were crossing the river, there was some leakage in the side of the boat from which the water came into the boat and when water level rose, the frightened deceased jumped into the river he did not know swimming. Nakuda and other accompanying person though tried to save him but failed, as he swallowed too much of water and while reaching shore he died. The substance of the report is that as a result of accident, Lokpal Singh died but significantly this report says that Lokpal Singh had gone to Paati Nagra alongwith some officers of the D.R.D.A. for the purpose of fitting engines and he has fitted two engines on Friday and has not come back, while persons from D.R.D.A. and Mahendra Jain, who were also there, returned to main land in the same evening. This document at least gives a clue that deceased had gone to Paati Nagra for some employment in connection with fitting engines under Lift Project and he was left along at Paati Nagra on Friday evening with unfinished work to be carried out next day i.e. Saturday. It also shows that at Paati Nagra no transport by his employer was made available. 15. We may not draw any inference from this document whether he was an employee of Mahendra Jain or D.R.D.A. However, if in the light of this happening, statement of Deepak Srivastava, who has appeared as a witness on behalf of respondent employer is read, it reveals that he was, on the relevant date, working as Junior Engineer in D.R.D.A. He knows both Mahendra Jain, Proprietor of M/s. Mahendra Machinery Corporation and deceased Lokpal Singh. According to his statement, Mahendra Jain is taking petty contracts for supply of items from the Department. He admits that in village Paati Nagra the work of lift irrigation through D.R.D.A. was going on. He also admits that M/s. Mahendra Machinery Corporation was a contractor for supplies of items at site. The supplies from the main and were being taken by jeep motor. Significantly, he states that in Paati Nagra work of D.R.D.A. was being carried under the supervision of a committee. He also admits that M/s. Mahendra Machinery Corporation was a contractor for supplies of items at site. The supplies from the main and were being taken by jeep motor. Significantly, he states that in Paati Nagra work of D.R.D.A. was being carried under the supervision of a committee. While he denies that it is within his knowledge whether Lokpal Singh was carrying any supplies from M/s. Mahendra Machinery Corporation, in cross examination, while denying that no employee of D.R.D.A. was working as fitter at Paati Nagra site, he states that M/s. Mahendra Machinery Corporation may have been given the contract by the Samiti, who was entrusted with the task of implementation. He categorically stated " egsUnz ef'kusjh dks lfefr us dk;Z fn;k gksxkA " This statement, which is coming from a person who is not in the employment of Mahendra Jain but is a Government employee, reveals that at Paati Nagra D.R.D.A. has a contract with M/s. Mahendra Machinery Corporation for supplies for the purpose of on going lift irrigation project as the implemention of lift irrigation work was not being done directly by D.R.D.A. through its own employees but was implemented through a committee through its Chairman and perhaps the contract for implementing the work was given to M/s. Mahendra Machinery Corporation by the committee. It clearly gives out that relationship of M/s. Mahendra Machinery Corporation with D.R.D.A. was for contract of supplies. Contract of supplies was not only the business in which M/s. Mahendra Machinery Corporation was engaged but it was also engaged in other petty contracts for implementing certain works. First information Report, which is unembellished of any subsequent motives goes to show the presence of Deepak Srivastava, deceased Lokpal Singh and Mahendra Jain at Paati Nagra in connection with implementation of Lift Irrigation project of D.R.D.A. The two circumstances unmistakably indicates that deceased was at village Paati Nagra and that work at Paati Nagra in connection with execution of Lift Irrigation work which is being executed by Samiti through its Chairman, contract for which was with M/s. Mahendra Machinery Corporation. He was engaged on 23.11.1990 for installing engines and only two engines could be installed. Thus, while officers of D.R.D.A. and proprietor of M/s. Mahendra Machinery Corporation had left Paati Nagra In the evening of 23.11.1990 leaving behind deceased with unfinished work. 16. He was engaged on 23.11.1990 for installing engines and only two engines could be installed. Thus, while officers of D.R.D.A. and proprietor of M/s. Mahendra Machinery Corporation had left Paati Nagra In the evening of 23.11.1990 leaving behind deceased with unfinished work. 16. Thus, Mahendra Kumar Jain has a dual function; one of supplying material, which may be the responsibility to D.R.D.A. and other of execution of work by using those supplies by him as a contractor of the committee. The only person, who could have executed the work, which comes out of the two statements is Lokpal Singh. This belies the theory of respondent that Lokpal Singh was exclusively employed for the purpose of supplying the items and for not any other purpose. If in between these two statements, statement of Nakuda is read, who is nowhere related to the deceased or members of his family and is a resident of Paati Nagra, he states in no uncertain terms that deceased was at Paati Nagra for the purpose of executing the lift irrigation work. As per the attendance register also, deceased Lokpal Singh was shown to be on travelling on 23.11.1990. Therefore, the statement of Nakuda cannot be discarded merely on the ground of version of employer that the deceased Lokpal Singh was employed only for the purpose of delivering supplies and he was not engaged for any fitting work. It also establishes in no uncertain terms that from Paati Nagra, Lokpal Singh has not returned to Banswara, the place of his residence and the place where the establishment of his employer was situated. This is not even the case of respondents that the deceased was not in employment on 23.11.1990. In fact, he was otherwise in the employment of respondent M/s. Mahendra Machinery Corporation is not in dispute. Great emphasis has been led by the learned workmen Compensation Commissioner in placing implicit reliance that the applicants have failed to prove wherefrom the deceased has boarded the boat and wherefrom he was coming and where he was going. This opinion framed by the learned Commissioner, in our opinion, is founded by ignoring the very cogent and reliable material on record which we have noticed above. 17. This opinion framed by the learned Commissioner, in our opinion, is founded by ignoring the very cogent and reliable material on record which we have noticed above. 17. Notwithstanding, this material on record and taking specific plea that the deceased has taken leave from his employer to visit his in-laws house, no question has been directed to the applicant where her parents reside and whether on the faithful day or the day before, the deceased had gone to meet his in-laws. No material has been placed whether the deceased could have been at Paati Nagra while going to the place of his in-laws. No attempt has been made by the respondent to show that Paati Nagra from where the deceased boarded was on way to his in-laws house. Notwithstanding the aforesaid material on record about the place where the in-laws of the deceased are residing, the best witness could have been applicant Kiran Devi. Obviously, respondent would not stress on this information which could have gone against their plea of taking leave for going to in-laws place. It has been stated that he wanted to go to Ratlam, but no connection between Ratlam and Paati Nagra has been established nor any effort was made to establish that while going to his in-laws place, he might have boarded from Paati Nagra. 18. On the other hand, Nakuda in his statement clearly stated that Lokpal Singh informed him that he will go to Ratlam from Banswara. He also stated that deceased was doing the work of fitting. He has specifically denied that fitting work has come to an end on Friday. Statement of Nakuda, who accompanied the deceased from Paati Nagra on boat, clearly shows that deceased was to go to his in-laws house at Ratlam from Banswara. He also stated that as his employer. having left on Friday evening with his vehicular transport and there is no other option but to catch a different transport for proceeding to Banswara. According to him, nearest option was to go across Paati Nagra by boat and then catch a road transport from the other side. 19. He also stated that as his employer. having left on Friday evening with his vehicular transport and there is no other option but to catch a different transport for proceeding to Banswara. According to him, nearest option was to go across Paati Nagra by boat and then catch a road transport from the other side. 19. In our opinion, the material and circumstances pointed out above clearly establishes that since Friday the deceased was at Paati Nagra for discharging the work of fitting for the purpose of installing engines in which involvement of Mahendra Kumar Jain as a contractor, as per the statement of his own witness Deepak Srivastava, has been totally ignored and serious error has been caused by accepting ipse dixit statement of respondents which were self serving statements to avoid statutory liability arising under the Act of 1923. 20. We are of the opinion that it is fairly established from the material on record -by independent witnesses and unimpeachable surrounding circumstances that deceased Lokpal Singh was at Paati Nagra since Friday i.e. 23.11.1990 in the course of his employment with Mahendra Kumar Jain in connection with executing the work of lift irrigation project and while returning from his place of work, he met with an accident in which he drowned. The death of Lokpal Singh has been proved on record to be because of accident in the course of his employment with M/s. Mahendra Machinery Corporation or its proprietor Mahendra Kumar Jain. 21. Having reached this finding, the matter now concerns determination of compensation payable to the applicants. We are in agreement with the finding reached by the learned Commissioner that in view of existence of widow of the deceased, father could not be said to be entitled to compensation and widow alone is entitled to full compensation. Finding about salary which was received by the deceased from Mahendra Kumar Jain has been that the applicants have not been able to prove that deceased was receiving Rs. 1200/- per month as wages from his employer. The employer by producing payment voucher, signatures on which have been admitted by his wife, establishes that he was being paid Rs. 500/- per month. The finding in that regard by the learned Workman Compensation Commissioner appears to be correct. 1200/- per month as wages from his employer. The employer by producing payment voucher, signatures on which have been admitted by his wife, establishes that he was being paid Rs. 500/- per month. The finding in that regard by the learned Workman Compensation Commissioner appears to be correct. The question now remains as to what exact amount of compensation on the basis of emoluments, which were being received by the deceased at the time of his death from his employer, is payable to the applicant wife. 22. In view of the above, the appeal is allowed the judgment under appeal as well as order of learned Workman Compensation Commissioner are set aside. Learned Workman Compensation Commissioner is directed to determine the exact amount of compensation along with interest and penalty as may be payable under the provisions of the Act, 1923 within a period of two months from the date of production of certified copy of the order before it by any of the parties and take necessary steps for recovery of said amount in accordance with law, if the respondent employer fails to pay the amount so determined by the learned Commissioner within a period of two months from the date of determination. Respondent Mahendra Kumar Jain shall bear the cost of this litigation throughout.Appeal allowed - Commissioner directed to determine compensation. *******