Judgment ( 1. ) THE decision rendered in this appeal shall also govern disposal of other appeal being M. A. No. 3255/06 because firstly, both these appeals arise out of same award and secondly both are in the nature of cross appeals. ( 2. ) THIS is an appeal filed by claimants under Section 30 of the workmens Compensation Act (for short called "the Act") against an award dated 8-8-2006 passed by Commissioner, Workman Compensation (Labour court), Mandsaur in Claim Case No. 6/wc/fatal/2004. By impugned award, the commissioner, Workman Compensation has partly allowed the claim petition of claimants filed under Sections 3, 4 and 10 of the Act claiming compensation for the death of one Anil Soni and awarded a total compensation of rs. 1,97,060/- to the claimants. It is against this award both, i. e. , claimants and non-applicants have felt aggrieved and have accordingly filed the 2 appeals. So far as M. A. No. 3349/06 is concerned, it is filed by claimants claiming enhancement in the compensation awarded by the Tribunal. According to claimants what is awarded by the Tribunal is on lower side hence it be enhanced whereas in an appeal filed by non-applicants, i. e. , M. A. No. 3255/06, the impugned award is challenged on the ground that no liability could have been fastened upon the non-applicants. This is how the entire controversy involved in the claim case out of which these 2 appeals arise is again sought to be raised in these 2 appeals. ( 3. ) FACTS in brief are these. ( 4. ) ON Anil Soni, aged around 35 years, was found dead in the night (8. 30) of 21 -10-03 at the office premises of non-applicant (appellant of M. A No. 3255/06 ). It is this incident, which gave rise to filing of claim petition by the legal representatives of Anil before the Commissioner, Workman Compensation under the Act out of which these 2 appeals arise claiming compensation for his death. According to claimants, Anil was working as Chowkidar by the non-applicant on a monthly salary of Rs. 3,000/- and he (Anil) died on 21-10-03 while on duty at 8. 30 P. M. The non-applicant (a service centre of Tata) denied the claimants case and contended that Anil was neither employed by them nor was he working as Chowkidar in their employment at any time. 3,000/- and he (Anil) died on 21-10-03 while on duty at 8. 30 P. M. The non-applicant (a service centre of Tata) denied the claimants case and contended that Anil was neither employed by them nor was he working as Chowkidar in their employment at any time. It was also contended that since, the establishment of non-applicant is covered by the provisions of ESI Act hence provisions of the Act would not apply in this case. It was, therefore, contended that claim application filed by the claimants under the the Act is not maintainable. It is, thus, liable to be dismissed. ( 5. ) AS observed supra, the Commissioner partly allowed the claim application. He held that deceased-Anil was in the employment of non-applicant as Chowkidar and he died on 21-10-03 while on duty. It was held that he was being paid a monthly salary of Rs. 2,000/- by the non-applicants. It was held that claim petition is maintainable. It is these findings, which are assailed by the parties to claim application in these 2 appeals. ( 6. ) HEARD Yashpal Rathore, learned Counsel for the appellants and shri G. S. Patwardhan, learned Counsel for the respondent. ( 7. ) HAVING heard the learned Counsel for the parties and having perused the record of the case, we are inclined to allow the appeal of claimants, i. e. , MA. No. 3349/06 whereas dismiss the appeal of non-applicants, i. e. , M. A. No. 3255/06. ( 8. ) COMING first to the appeal filed by non-applicant, i. e. , M. A. No. 3255/06, the submission of learned Counsel for appellant was that since, the establishment was governed by the provisions of ESI Act hence, the claim application filed by claimants under Section 3 read with Section 4 of the Act was not maintainable. Learned Counsel placed reliance on the decision reported in air 1996 SC1990 (A. Trehan Vs. Associated Electricals Agencies), in support of his submission, we find no merit in this submission. In the first place, no factual foundation was laid by the non-applicant in their written statement to show that their establishment was governed by the provisions of ESI Act and if so from which date ? Associated Electricals Agencies), in support of his submission, we find no merit in this submission. In the first place, no factual foundation was laid by the non-applicant in their written statement to show that their establishment was governed by the provisions of ESI Act and if so from which date ? Secondly, in the absence of any factual foundation and further in the absence of any evidence showing compliance of the provisions of ESI Act, the Commissioner was justified in overruling the objection of non-applicant. ( 9. ) IN our opinion, it was necessary for the non-applicant to have first pleaded and proved as to how and on what basis, their establishment is governed by the ESI Act. This could be proved by showing actual compliance of the Act made by the non-applicant in day-to-day working. Admittedly, no documents were filed by the non-applicant to prove this fact. In these circumstances, it is not possible for this Court to accept the submission of learned Counsel appearing for the appellant. The decision of Supreme Court relied on by learned Counsel has thus no application to the facts of this case for want of pleading and evidence. ( 10. ) ACCORDINGLY and in view of foregoing discussion, the appeal, i. e. , m. A No. 3255/06 filed by non-applicant (employer) fails and is dismissed. No cost. ( 11. ) THIS takes us to the next appeal, i. e. , M. A. No. 3349/06 filed by claimants contending that Commissioner erred in awarding a sum of rs. 1,97,060/- to the claimants for the death of Anil. According to claimants, it should have been more. ( 12. ) WE have gone through the evidence adduced by the claimants on the question of deceaseds monthly salary. The evidence adduced clearly show that deceased was getting monthly salary of Rs. 3,000/ -. We accept this evidence adduced by the claimants for more than one reason. Firstly, non-applicant took a false defense on facts saying that deceased was not in their employment. Secondly, in view of clear admission made by non-applicant in Exh. P-7 (Panchnama) admitting deceaseds identity at the time of death, the evidence adduced by non-applicant is not reliable. Thirdly, we accept the oral evidence of claimants when it was said that non-applicants never used to give any receipt for the monthly amount of Rs. 3,000/- that used to be paid to deceased. ( 13. P-7 (Panchnama) admitting deceaseds identity at the time of death, the evidence adduced by non-applicant is not reliable. Thirdly, we accept the oral evidence of claimants when it was said that non-applicants never used to give any receipt for the monthly amount of Rs. 3,000/- that used to be paid to deceased. ( 13. ) IN view of foregoing discussion, we hold that deceaseds monthly salary was Rs. 3,000/- as against Rs. 2,000/- held by Commissioner. ( 14. ) SO far as factum of accident and resultant death of Anil is concerned, the same was not in dispute. In other words, it is not in dispute that accident occurred during the course of employment and it arose out of employment. In this view of the matter, the requirement of Sections 3 and 4 of the Act for entertaining and awarding compensation under the Act stands made out. Moreover, this finding was not seriously disputed by the employer in their appeal. That apart, even if it is so assailed, we do not find any good ground to reverse the same. It is, accordingly, upheld. ( 15. ) IN view of foregoing discussion when we apply proper factor of 197. 06 (because the age of deceased was 35 years then we get a sum of Rs. 1500 x 197. 06 = Rs. 2,95,590/- as provided in Section 4 (i) ibid. ( 16. ) ACCORDINGLY, the appeal, i. e. , M. A. No. 3349/06 succeeds and is allowed. Impugned award is modified in claimants favour and an award of rs. 2,95,590/- is passed against the non-applicant/respondent. The awarded amount shall carry interest at the rate of 12% payable from the date of impugned award as per Section 4-Aibid. Counsel fees Rs. 1,500/-, if certified.