Judgment ( 1. ) - Being aggrieved by the order dated 12. 7. 2006, passed by the Commissioner for Workmens Compensation (Labour Court), Indore, in Case No. 12 of 2005 (WCA) whereby application filed by respondent Nos. 1 to 7 for compensation on account of death of deceased Govind, who happens to be husband of respondent no. 1, father of respondent Nos. 2 to 5 and son of respondent Nos. 6 and 7, was allowed and compensation of Rs. 2,41,201, has been awarded, the present appeal has been filed under section 30 of the Workmens compensation Act. ( 2. ) THE appeal was admitted for final hearing by this court vide order dated 27. 9. 2006, on the following substantial questions of law: (1) Whether the death of a labourer caused due to the work outside the scope of work authorised by his master is covered under Workmens Compensation Act? (2) Whether insurance company, which covers the risk relating to motor vehicle is liable to pay compensation under the workmens Compensation Act, if the labourer is doing work other than the work relating to motor vehicle? (3) Whether digging of mine is a work included within the definition of driver? ( 3. ) SHORT facts of the case are that the deceased Govind was employed as driver of a dumper bearing registration No. MKJ 8498, which was owned by respondent No. 8 and insured with appellant at the relevant time. Case of the respondent Nos. 1 to 7 was that on 22. 12. 2004, when the deceased govind was on duty on the offending dumper and reached a mine for collecting the murram, at that time the deceased Govind sustained injuries along with one labourer rakesh. Further case of respondent Nos. 1 to 7 was that because of the injuries Govind died on spot. It was alleged that since the accident occurred during the course of employment, therefore, the respondent No. 8 and appellant is liable for payment of compensation. It was alleged that the deceased was getting Rs. 4,000 per month as salary and Rs. 50 as travelling expenses. ( 4. ) THE claim petition was contested by the appellant on various grounds including the ground that the accident did not occur during the course of employment, therefore, appellant insurance company is not liable for payment of compensation. It was prayed that the claim petition be dismissed. ( 5. 50 as travelling expenses. ( 4. ) THE claim petition was contested by the appellant on various grounds including the ground that the accident did not occur during the course of employment, therefore, appellant insurance company is not liable for payment of compensation. It was prayed that the claim petition be dismissed. ( 5. ) AFTER framing of issues and recording of evidence the learned Commissioner found that since the accident occurred during the course of employment, therefore, the appellant insurance company is liable for payment of compensation along with the owner. So far as wages are concerned learned Commissioner did not believe the evidence adduced by respondent Nos. 1 to 7 that the deceased was being paid the salary of Rs. 4,000 p. m. and the travelling allowance at the rate of Rs. 50, but determine the wages at the rate of Rs. 2,448 per month, as per the minimum wages, which are being fixed by the Collector in that particular year under the provisions of the minimum Wages Act. After deducting of the amount towards personal expenses looking to the age of the deceased, which was assessed as 35 years, applied the multiplier of 197. 06 and awarded a sum of rs. 2,41,201 along with interest at the rate of 9 per cent per annum. ( 6. ) MR. H. C. Jindal, learned counsel for the appellant submits that it was the duty of respondent Nos. 1 to 7 to prove that the accident occurred during the course of employment. It is submitted that ample evidence is on record including statement of respondent No. 8 under whose employment deceased was working to show that deceased was employed for the purpose of driving the dumper, while the accident occurred at the time when the deceased was digging the mine along with other labourers. It is submitted that it was not the duty of the deceased to dig the mine, therefore, neither the respondent No. 8 nor the appellant is liable for payment of compensation. ( 7. ) LEARNED counsel placed reliance on a decision of Division Bench of this court in the matter of Neelam Devi v. Devendra singh Yadav, 2006 ACJ 139 (MP), wherein when a bus met with accident and a person alleged to have been engaged as driver, but he was not driving the vehicle at the time of accident sustained fatal injuries. ) LEARNED counsel placed reliance on a decision of Division Bench of this court in the matter of Neelam Devi v. Devendra singh Yadav, 2006 ACJ 139 (MP), wherein when a bus met with accident and a person alleged to have been engaged as driver, but he was not driving the vehicle at the time of accident sustained fatal injuries. Division Bench of this court held that the order of Commissioner in exonerating the insurance company is justified because the accident did not occur during the course of employment. In this case, it was found that deceased was under age and owner did not produce any evidence to demonstrate that the deceased was having a valid driving licence and was his employee. ( 8. ) FURTHER reliance has been placed on a decision in the matter of Brian Sindey mendies v. Secretary, Bishop West Scott school, Ranchi, 2005 ACJ 1070 (Jharkhand), wherein Division Bench of jharkhand High Court in a case when a person employed by school was overall in-charge of school mess and was called Food/mess sergeant, died in accident arising out of and in the course of his employment, held that since deceased was neither in cooking nor serving food but in managing/supervising the mess work and keeping accounts, therefore, deceased was not a workman and his dependants are not entitled for any compensation. In this case the compensation was refused on the ground that the deceased was not a workman as he was in supervisory staff. ( 9. ) FURTHER reliance was placed on a decision of Honble Apex Court in the case of Lakshminarayana Shetty v. Shantha, 2001 ACJ 1561 (SC), wherein the Honble apex Court has held that when accident occurred during painting of house, which was given on contract basis, it was held that the accident did not arise out of and during course of employment so as to fall within the ambit of Workmens Compensation Act. ( 10. ) RELIANCE was also placed on a decision of Division Bench of this court in the matter of Gulab Singh v. Mahesh Singh tomar, 2000 (1) VB 28, wherein Division bench of this court held that in a case where the involvement of motor vehicle is not proved in accident, maxim res ipsa loquitur, accident speaks for itself, has no application. ( 11. ( 11. ) LEARNED counsel submits that since the accident occurred at the time when the mine was dug by the deceased, therefore, no further evidence was required. ( 12. ) MR. Manish Jain, learned counsel for respondent Nos. 1 to 7 submits that so far as contention of the appellant that the accident did not occur during the course of employment is not a question of law and cannot be looked into by this court. For this contention reliance was placed on a decision of Allahabad High Court in the matter of United India Insurance Co. Ltd. v. Chandra Kali, 2004 ACJ 614 (Allahabad), wherein a Division bench of Allahabad High Court has held that where the commissioner, on the basis of evidence and material on record, found that death of the driver of vehicle caused while he was driving the vehicle in the course of employment, appeal against the finding is not maintainable, as no substantial question of law is involved. ( 13. ) LEARNED counsel further submits that even if it is assumed that death occurred during the course of employment or not is a question of law, then too, the appeal deserves to be dismissed as in the matter of State of Rajasthan v. Ram Prasad, 2001 acj 647 (SC), Honble Supreme Court in a case where the death of a workman occurred due to lightning, it was held that the death arose out of and in the course of employment and the heirs of the workman are entitled to compensation. ( 14. ) FURTHER reliance was placed on a decision of the Division Bench of Gauhati high Court in the matter of National Insurance Co. Ltd. v. Sabita Gope, 2000 ACJ 1153 (Gauhati), wherein the Honble Division Bench in a case where the driver of truck while on duty had to stop as he could not proceed further due to bandh and at night he slept inside the cabin of the truck and was found dead in the morning, it was held that deceased was discharging his duties in course of employment because he was compelled to halt and he could not leave the truck uncared for at night. ( 15. ) MR. Manish Jain, learned counsel for respondent Nos. 1 to 7 further submits that since the respondent Nos. 1 to 7 have led evidence that the deceased was getting salary of Rs. ( 15. ) MR. Manish Jain, learned counsel for respondent Nos. 1 to 7 further submits that since the respondent Nos. 1 to 7 have led evidence that the deceased was getting salary of Rs. 4,000, therefore, learned court below committed error in assessing the compensation holding that the income of the deceased from salary was Rs. 2,448. Learned counsel further submits that learned Tribunal committed error in awarding interest at the rate of 9 per cent per annum, while interest was required to be paid at the rate of 12 per cent, as per section 4-A of Workmens Compensation Act. For this contention reliance was placed on a decision of Honble Apex Court in the matter of Pratap Narain Singh Deo v. Shrinivas sabata, 1976 ACJ 141 (SC), wherein the honble Apex Court has held that there is nothing to justify the argument that the employers liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. It was further held that the appellant is liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant and there is no justification for the argument to the contrary. It was further held that it was the duty of the appellant, under section 4-A (1) of the Act to pay the compensation at the rate provided by section 4, as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondents personal approach for obtaining the compensation. ( 16. ) MR. H. C. Jindal, learned counsel for the appellant placed reliance on a decision of Honble Apex Court in the matter of new India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya, 2006 ACJ 1699 (SC), wherein policy expressly excludes interest and penalty imposed on insured employer on account of his failure to comply with the requirements of the Act, it was held that employer is liable for payment of interest and not the insurance company. ( 17. Ltd. v. Harshadbhai Amrutbhai Modhiya, 2006 ACJ 1699 (SC), wherein policy expressly excludes interest and penalty imposed on insured employer on account of his failure to comply with the requirements of the Act, it was held that employer is liable for payment of interest and not the insurance company. ( 17. ) FURTHER reliance was placed on a decision of Honble Supreme Court in the matter of National Insurance Co. Ltd. v. Mubasir Ahmed, 2007 ACJ 845 (SC), wherein the Honble Apex Court has held that starting point is on completion of one month from the date it fell due. Obviously it cannot be the date of accident. Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because section 4-A (1) prescribes that compensation under section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. Unless adjudication is done, question of compensation becoming due does not arise. ( 18. ) RELIANCE was also placed on a decision of Honble Apex Court in the matter of P. J. Narayan v. Union of India, 2004 acj 452 (SC), wherein the Honble Apex court has held that insurance company is not statutorily liable for payment of interest on the amount of compensation. It is the liability of the employer to pay the interest because there is a clause in the policy that insurance company will not take on liability for interest. ( 19. ) APART from this whether the deceased Govind died during the course of his employment is concerned is a question of law or not according to the decision of this court it is well settled that it is not a question of law. ( 20. ) FROM perusal of record it is evident that the accident occurred on 22. 12. 2004 at about 6. 30 a. m. and in the said accident govind and other labourer Rakesh died on spot. There were other persons also, who were working on spot, namely, Gangaram, langooria and Sanju, neither respondent no. 8 nor appellant took care of examining any of the witnesses to prove that in what circumstances the accident occurred. The investigator has been examined by the insurance company, who is one Kamalkant thombare. There were other persons also, who were working on spot, namely, Gangaram, langooria and Sanju, neither respondent no. 8 nor appellant took care of examining any of the witnesses to prove that in what circumstances the accident occurred. The investigator has been examined by the insurance company, who is one Kamalkant thombare. He has also not stated that while coming to the conclusion that the accident was not during the course of employment, he has made any investigation from any of the above named persons, who were the eyewitnesses of the incident. The conclusion which was drawn by Kamalkant Thombare is based on the statement of respondent No. 8, who is employer and respondent No. 1, who is the wife of the deceased. Both of them were not the eyewitnesses of the accident. No reason has been assigned by Kamalkant Thombare that why the statement of eyewitnesses was not recorded by him. The accident took place at about 6. 30 a. m. It was the duty of the deceased to remain with the dumper, which was parked at the site of the mine from where the murram was to be loaded, therefore, it cannot be said that the respondent No. 8 and the appellant is not liable for payment of compensation, as the accident did not occur during the course of employment. ( 21. ) SO far as enhancement of amount is concerned the case of the respondent nos. 1 to 7 was that the deceased was earning Rs. 4,000, which has not been found proved by the learned court below and the assessment of compensation is made on the basis of guideline of the Collector for the relevant period, which requires no interference. So far as payment of interest is concerned reliance was placed on a four judges decision of Honble Apex Court in the matter of Pratap Narain Singh Deo v. Shrinivas Sabata, 1976 ACJ 141 (SC), wherein it is held that the employer and the appellant insurance company is liable for payment of compensation along with interest from the date of accident. ( 22. ) SO far as authorities submitted by mr. Jindal such as New India Assurance co. Ltd. v. Harshadbhai Amrutbhai Modhiya, 2006 ACJ 1699 (SC) and National insurance Co. ( 22. ) SO far as authorities submitted by mr. Jindal such as New India Assurance co. Ltd. v. Harshadbhai Amrutbhai Modhiya, 2006 ACJ 1699 (SC) and National insurance Co. Ltd. v. Mubasir Ahmed, 2007 ACJ 845 (SC), are concerned, both the cases are not applicable in the present case, because firstly the decision given by four Judges of Honble Apex Court in the year 1976, has not been taken into consideration in the subsequent decision. Apart from this no evidence has been adduced by the appellant to the effect that as per policy, appellant is not liable for payment of interest and there was no clause in the agreement which exonerates the appellant and holds respondent No. 8 responsible for payment of interest. ( 23. ) IN view of this, appeal has no force and is hereby dismissed. So far as the cross-objections submitted by respondent nos. 1 to 7 are concerned they are partly allowed, as the respondent Nos. 1 to 7 shall be entitled for interest at the rate of 12 per cent per annum instead of 9 per cent per annum. ( 24. ) WITH the aforesaid observations the appeal stands disposed of. Orders accordingly.