Judgment H.K. Rathod, J.—Heard learned Advocate Ms. Megha Jani for appellant - Insurance Co., learned Advocate Mr. D.V. Shah for Respondent No. 1 and learned Advocate Mr. Deepak Patel for Respondent No. 7. 2. In present appeal, appellant - Insurance Co. has challenged judgment and order passed by W.C. Commissioner, Ahmedabad in W.C. (Fatal) Case No. 133 of 1985 dated 7.2.2001. The W.C. Commissioner has directed appellant to pay Rs. 1 lac being compensation to claimant along with 6% interest from date of accident till date of payment under this order and penalty of Rs. 25,000/- has been imposed upon Opponent No. 7 - Abad Dairy. 3. Learned Advocate Ms. Megha Jani has raised contention before this Court that looking to PM Note, there is no connection with injury received by deceased on 9.1.1985. She further submitted that accident occurred on 9.1.1985; deceased was admitted in hospital on 10.1.1985 and died on 16.1.1985. She heavily relied upon PM report and has read over before this Court Page-23 (Column-6), Page-26 (Column-17), Page 18 and Page 27 (Column-19). So, considering PM report as referred by learned Advocate Ms. Megha Jani, her submission is that nowhere it is found from PM report, having any connection with alleged accident occurred on 9.1.1985. In short, her submission is that death of person is due to disease of tuberculosis pneumonia. So this cannot have any connection with injury, therefore, it cannot be considered to be an accident occurred during course of employment and therefore, employer and Insurance Co. both are not liable to pay single pie being a compensation to claimant. She also submitted that if there is an injury either external and internal, it must have to be found from PM report but, there is nothing in PM report reflecting any kind of injury. Therefore, death of person is due to tuberculosis pneumonia only, that aspect has been totally ignored by Commissioner and that is a basic error committed by Commissioner. Therefore, interference by this Court is required. She also read before this Court evidence of claimant at Exh.13; also observations made by Commissioner at page-5 and also submitted that when PM report is filled up, nobody was there to give details or history of deceased. Therefore, age 35 mentioned in PM report is not to be relied. Therefore, interference by this Court is required. She also read before this Court evidence of claimant at Exh.13; also observations made by Commissioner at page-5 and also submitted that when PM report is filled up, nobody was there to give details or history of deceased. Therefore, age 35 mentioned in PM report is not to be relied. According to record of employer, age of 50 is correct but, there is no documentary proof produced by claimant in respect to age of deceased when he died. Therefore, she submitted that in stead of 35 and 50, let 40 age is to be taken into account. She also submitted calculation which has been carried out by Commissioner is as if that it is under provisions of MV Act, therefore, calculation is wrong, contrary to Act and correct calculation is being an alternative argument is that, his salary was Rs. 1000/-, 197.6 relevant factor, age 40, then it comes to Rs. 73,668/- and if age is considered as 35, then total amount of compensation worked out under W.C. Act comes to Rs. 78,424/-. Therefore, there was two calculations, one is age 40 and another is age of 35. Therefore, she submitted that Commissioner has committed gross error in considering age 35 for calculating compensation. She also submitted that Commissioner has wrongly discarded evidence of PM report which was exhibited. She referred page-5, point (Nos.2 and 3) which has been discussed by Commissioner. She further submitted that conclusion of Commissioner relying upon oral testimony of claimant at Exh.13 and accepted that probable cause of death is tuberculosis pneumonia, even then accident occurred on 9.1.1985 is leading factor for deteriorating condition of deceased and cause of his death. She submitted that for this conclusion, there is no evidence on record which has been relied upon by Commissioner. Therefore, it is a basic error committed by Commissioner. She relied upon a decision of Apex Court in case of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali and Anr. Reported in (2007) 11 SCC 668 . She referred Para. 4 of decision wherein it is observed that ‘only evidence which was brought on record was by way of deposition of the appellant. It was alleged : “... my son died while working in the vehicle of R-1 and due to the strain of work...” Therefore, she submitted that there must be some causal connection of accident with death. 4 of decision wherein it is observed that ‘only evidence which was brought on record was by way of deposition of the appellant. It was alleged : “... my son died while working in the vehicle of R-1 and due to the strain of work...” Therefore, she submitted that there must be some causal connection of accident with death. If there is no casual connection between death and accident, then it cannot consider that accident occurred during course of employment. Except that, no other submission is made by learned Advocate Ms. Megha Jani before this Court. 4. Learned Advocate Mr. Shah appearing for Respondent No. 1 relied upon decision of Division Bench of this Court in case of General Manager, Western Railway, Bombay vs. Mrs. Menaca D. Macwan and Others reported in 1977 ACJ 101. He submitted that workman, who died, was incharge night shift in Railway locoshed; the duty hours was from 8 p.m. to 8 a.m., the incharge day shift sent a message to deceased to take over duty at 4 p.m. as he has to make some arrangement for staff meeting; the deceased who was suffering from pulmonary tuberculosis before his death, vomited blood and fell down in locoshed and died. The question was whether accident arose out of and during the course of employment? The answer is given by Division bench ‘yes’ because there was casual connection between injury and accident and employment. Relevant Para.1 and 7 are quoted as under : “1. The General Manager, Western Railway, has come in this appeal because the claim for compensation of the dependent-widow under the Workmen’s Compensation Act, which had been rejected by the Commissioner had been fully awarded by the learned Single Judge. The claimants were the widow and the children of one David Macwan, who met with the alleged accident on July 22, 1967, at about 5.30 p m. The deceased Macwan was serving as a night-in-charge at Nadiad locoshed and his ordinary duty hours were from 8.0 p.m. to 8.0 a.m. On 20th and 21st July 1967 the deceased was on a scheduled rest and he had to resume his duty at 8.0 p.m. on July 22, 1967. According to the claimants. One Chhotubhai Vaghjibhai Patel, Ex. 19, was a fitter-in-charge in the locoshed at Nadiad and he was on duty during day time. According to the claimants. One Chhotubhai Vaghjibhai Patel, Ex. 19, was a fitter-in-charge in the locoshed at Nadiad and he was on duty during day time. The deceased night-in-charge had to do the same duty of supervision over the staff working in the locoshed during the hours of his duty. According to the claimants, there was a meeting of the supervisory staff to be held sometime on July 23, 1967 and as Chhotubhai had to make arrangements for the same, he was required to leave his place of duty around 4.0 p.m. and, therefore he sent Josephbhai Jacobbhai Macwan, Ex. 14, to the house of the deceased David Macwan asking him to come over to the locoshed and to take over duty from Chhotubhai Around 5.0 p.m. David Macwan, who was suffering from pulmonary tuberculosis before his death, vomitted blood and fell down in the locoshed. Immediately information was sent to Chhotubhai, who came post-haste from his house to the locoshed and removed David in a car to Mahagujarat Hospital, where the doctor on duty pronounced him dead. The deceased having died by a personal injury suffered in in an accident that arose out of and in the course of his employment, the compensation amount of Rs. 9,000.00 was claimed from the respondent. The plea of the respondent was that the deceased David was not called to resume his duty by Chhotubhai at about 4.0 p.m. and there was nothing to show that strain of work aggravated the disease which resulted in his death. According to the respondent, the deceased died on account of the disease from which he was suffering and death was on account of natural cause and that it could never be said that he died on account of a personal injury suffered by him in an accident arising out of and in the course of his employment. The Commissioner held that the claimants have failed to prove that the deceased David died as a result of personal injury caused to him by an accident arising out of and in the course of his employment, and so the claim for compensation was dismissed. The Commissioner held that the claimants have failed to prove that the deceased David died as a result of personal injury caused to him by an accident arising out of and in the course of his employment, and so the claim for compensation was dismissed. The aforesaid finding was arrived at by the Commissioner because he disbelieved the case of the claimants that the deceased was called for duty and as he came to the conclusion that the deceased had come to the locoshed at S.O p.m. for personal work or was passing by the locoshed when he vomitted blood and collapsed. The Commissioner accepted the evidence of Chhotubhai, Ex. 19, and Kantilal, Ex. 23. The Commissioner held that Laxmanbhai, Ex. 13 and Joseph, Ex. 14, were got up witnesses, who had come to oblige the claimants. He came to the conclusion that David did not meet with an accident in the course of his employment. The Commissioner did not go into the second question as to the compensation payable to the dependents. The learned Single Judge had held that this was a case where the Commissioner had misdirected himself and committed an error of law which resulted in gross injustice by disallowing the claim of compensation. The conclusion of the Commissioner was held to be perverse, against the weight of evidence and contrary to the evidence on record and it was found by the learned Single Judge that the deceased had been called for duty. The learned Single Judge further held that the deceased was suffering from pulmonary tuberculosis since one year prior to his death, which fact was undisputed in view of the evidence of Dr. Nicholos Fonseca, Ex. 18, who had treated the deceased; the learned Judge was satisfied as to the causal connection between injury and accident and accident and employment. In that view of the matter, the learned Single Judge allowed the full claim of compensation of Rs. 9,000.00 with 6% interest and, therefore, the respondent Railway has come in this appeal. 7. The most material circumstance which was so eloquent to clinche the entire issue and to bear out the truth of the claimants’ case and which would unmistakably show that in all probability Chhotubhai left locoshed at 4-00 p.m., had not been considered at all by the Commissioner. That circumstance appeared from the admitted facts in the evidence of Chhotubhai, Ex-19. The most material circumstance which was so eloquent to clinche the entire issue and to bear out the truth of the claimants’ case and which would unmistakably show that in all probability Chhotubhai left locoshed at 4-00 p.m., had not been considered at all by the Commissioner. That circumstance appeared from the admitted facts in the evidence of Chhotubhai, Ex-19. A meeting of as many as 18 supervisors was to be held on July 23, 1967, where Chhotubhai was also to attend the same. Chhotubhai’s letter Ex. 21, which he has written immediately on the death of this David Macwan in terms makes it clear that Chhotubhai had requested the Divisional Mechanical Engineer, Mr. Joshi, that because the night-in-charge, at Nadiad, David had vomitted blood at 17.45 p.m. hours on July 22, 1967, in the shed and he was immediately taken to the Mission Hospital where the doctors declared that he had expired, in view of the sad incident, which had happened last evening, he should change the said supervisors’ meeting to any other place than Nadiad. His letter is very eloquent because it is written after the fact of death was known. Therefore, before that sad incident happened the position was that Chhotubhai was knowing that the meeting was to be held of all these 18 supervisors at this place on July 23, 1967, where this big boss was to come all the way from Baroda to Nadiad to preside over the meeting, Chhotubhai would have to make proper arrangements for this meeting. Therefore, the most natural inference was that Chhotubhai in order to make proper arrangements had to leave earlier on that day. Even Chhotubhai admits that he had left locoshed at 5.00 p.m. and had gone home on that day. Same is the version of another witness Kantilal, Ex. 23, who was also called there from home by witness Joseph, Exh. 14 at 5-30 p.m. After they came they took the deceased in a taxi to the hospital and at that time the wife of the deceased and Joseph were in the taxi. Witness Kantilal, Ex. 23, further brought out that the duties of night- in-charge David were similar to those of Chhotubhai. David did not come to perform duties during day time unless he was appointed in place of Chhotubhai and Chhotubhai was on leave. Witness Kantilal, Ex. 23, further brought out that the duties of night- in-charge David were similar to those of Chhotubhai. David did not come to perform duties during day time unless he was appointed in place of Chhotubhai and Chhotubhai was on leave. This witness further stated that David was under obligation to come to the office even during day time if he was called by Chhotubhai. He does not refer to any memo being given for such local arrangement to meet administrative exigency. Therefore, if these admitted facts were taken into account alongwith the aforesaid letter Ex. 21, it is obvious that Chhotubhai had to make arrangement for this meeting, where his boss was to attend on the next day and that meeting was cancelled after the death of the deceased and, therefore, Chhotubai would normally have left earlier and called the deceased on duty. Similarly, it was purely a conjectural finding by the learned Commissioner from the fact, that on the next day the doors of the stores had to be broken down because the key was missing, that this was supporting the version of Chhotubhai, on the ground that if David was called before 5-00 p.m. the key would be found with the lock of the stores of the locoshed. In this context the evidence is of Narsing Muljibhai, Ex. 17, who has deposed that this night-in-charge David, attended even during day time when Chhotubhai was busy or absent and the deceased therefore used to work even in day. He further deposed that the key of the stores remained with Chhotubhai, but on the next day after the incident the key of the stores was not with Chhotubhai and so the door of the stores had to be opened after breaking the latch. In his cross-examination he stated, that when the stores was closed in the evening by the fitter-in-charge he sent the key to the night in-charge on all this evidence, if it had been read by the learned Commissioner, no such conjectures could have been made because the key of the store either remained with Chhotubhai or it should have been at the house of the night-in- charge, if it had been sent as stated by Chhotubhai. The very fact that the key was not found at the house of the deceased but the store lock had to be broken open would clearly show that Chhotubhai had not explained how the key disappeared. Even the person who is alleged to have left the key at the house of the deceased has not been examined and, therefore, on a pure conjecture the Commissioner assumed that this circumstance supported Chhotu bhai’s version. The Commissioner even did not care to see that this was undisputed fact that this meeting was to be held on July 23, 1967, because even on that aspect he proceeded on the assumption, that if there was a meeting on the next day and if Chhotubhai had to make arrangement, it was official work and so, Chhotubhai would not depose falsely. That circumstance was totally neutral in view of the admitted fact that Chhotubhai has gone to his home at 5 00 p.m., which was only consistent with the claimants’ version that Chhotubhai had to make arrangement. Duty of both the persons was similar and, therefore, to exclude the possibility of David having been called Chhotubhai came out with the suggestion that the loco shunter looked after the work in his absence, which was contrary to the very evidence which we have referred to not only of Kantilal, Ex. 23, but even of Narsing, Ex 17 and Joseph, Ex. 14. Therefore, even this circumstance has been considered ignoring all this relevant evidence on the record. On the other hand, so far as the claimants’ witnesses are concerned, the Commissioner had assumed them to be got up witnesses only on the score that the written memo was not produced by them for showing that David was called. No such practice was ever alleged or proved and it is highly unnatural in such a casual on the spot arrangement. As far as the widow is concerned, she is disbelieved only because she did not produce the memo from the fitter-in-charge and she did not give the name of the person, who came to call her, when in fact the same person Joseph was examined. As far as the widow is concerned, she is disbelieved only because she did not produce the memo from the fitter-in-charge and she did not give the name of the person, who came to call her, when in fact the same person Joseph was examined. As regards Laxmibai, she is held to be a got-up witness ignoring the fact that she was not a relative of the deceased and she was the mukadam working under this deceased and she deposed her presence on that day as the contractor’s employee and she gave even the name of contractor Sharma. Even Chhotubhai, Ex. 19, did not deny her presence, but attempted to say that it was not true that on the day of the incident David had assigned work to Laxmibai, because his case is that they did not assign work directly but give instructions to the contractor. When the contractor’s record had not been produced nor the contractor had been examined, Laxmibai could not be said to be a got up witness when her whole evidence is so natural and does not suffer from any infirmity whatever and Chhotubhai even does not deny that she was not a mukadam in his department. Even as regards Joseph, his evidence clearly establishes his presence. Joseph admittedly came to call Chhotubhai, Ex. 19, at his house. Joseph had called even Kantilal from his house and informed him that David vomitted blood. If Joseph could be sent immediately to the houses of these persons, how he was a got up witness, when he was called by Chhotubhai to send for David to come to duty. The reasoning given by the Commissioner was the same conjectural reasoning that Joseph had not produced the written memo, when there was no such case of practice of a written memo being given. Therefore, on a clear conjectural reasoning, these three claimants’ witnesses are said to be got up witnesses and their evidence has been disbelieved, even though they completed the whole link which clearly established that the deceased had been called for duty on that day, even though no written memo was given. Even the natural probability was in favour of that version in view of these circumstances, especially when the locoshed is not a place where one would like to go earlier for passing his time as alleged. Even the natural probability was in favour of that version in view of these circumstances, especially when the locoshed is not a place where one would like to go earlier for passing his time as alleged. Therefore, this is a fit case where in view of the exceptional circumstances where all the material evidence which made a fundamental departure Had been ignored by the learned Commissioner, and the relevant evidence having not been looked into, such conjectural finding of fact was rightly held to be vitiated by the error of law. Such exceptional case would clearly fall within the ratio of Edwards (Inspector of Taxes) vs. Bairstow, where their Lordships in terms held that in such cases where appeal lay if the decision was positively wrong in law, the appeal Court should not impose any exceptional restraints upon themselves, because they were dealing with cases that arose out of facts found by the Commissioners. Their duty was no more than to examine those facts with a decent respect for the tribunal appealed from and if they thought that the only reasonable conclusion on the facts found was inconsistent with the determination came to, to say, so without more ado. Therefore, the learned Single Judge had rightly held that it was both the duty and power to interfere with such gross finding of fact which was clearly vitiated by an error of law in view of these exceptional circumstances because the maternal evidence making a fundamental difference had been ignored or misread and the determination had been arrived at clearly contrary to the whole evidence. Therefore, Mr. Bhatt could hardly allege that there was any jurisdictional error in interfering with the aforesaid finding of fact. Mr. Bhatt did not raise any other controversy in the view of the settled legal position as regards the work connected injury in such cases. Therefore, on the aforesaid reasoning the learned Single Judge rightly awarded the entire compensation amount of Rs. 9,000.00 with 6% interest. In that view of the matter, this appeal must fail and is, therefore, dismissed with costs.” 5. Learned Advocate Mr. Deepak Patel appearing on behalf of Abad Dairy submitted that till date, amount of 25% penalty has not been deposited by Abad Dairy. He also made it clear that this judgment and order passed by W.C. Commissioner is not challenged by Abad Dairy. Learned Advocate Mr. Deepak Patel appearing on behalf of Abad Dairy submitted that till date, amount of 25% penalty has not been deposited by Abad Dairy. He also made it clear that this judgment and order passed by W.C. Commissioner is not challenged by Abad Dairy. He further submitted that at present, Abad Dairy is sick and closed as per affidavit filed by Shri Shaileshbhai Jashwantrai Mehta, Manager (Administration) in Gujarat Dairy Development Corporation, Gandhinagar. He also submitted that accident occurred on 9.1.1985 when deceased was on duty. He also submitted that according to written statement filed by Abad Dairy before Commissioner, the accident occurred during course of employment and deceased had received injury and thereafter, admitted in hospital on 10.1.1985. Therefore, according to him, Commissioner has rightly examined matter and awarded compensation. For that, no interference is required by this Court. 6. I have considered submissions made by learned advocates appearing for respective parties. The facts are not much in dispute between parties. The only question is that whether accident dated 9.1.1985 has any casual connection with the death of deceased Chhotubhai Kanubhai Kureshi or not? The widow of deceased, in her evidence at Exh.13, has specifically stated that because of accident which occurred on 9.1.1985, her husband had received injury on ribs. Her evidence about injury on ribs remained unchallenged because there was no contrary evidence produced by appellant Insurance Co. before the Commissioner that there was no injury at all received by deceased on ribs. So injury received by deceased on ribs because of accident and at the time when accident occurred, he was on duty and, therefore, accident occurred during course of employment. The deceased was a workman within the meaning of Section 2(1)(n) of W.C. Act and relationship of employer and employee is not disputed by Abad Dairy because he was permanent workman working in post of driver. I have perused compilation produced by learned Advocate Ms. Megha Jani and also judgment and order passed by Commissioner. 7. Learned Advocate Ms. Megha Jani has relied upon PM report. It may happen that while making endorsement on PM report, whatever found by doctor from body has to be narrated in PM report. It may be that deceased was suffering from tuberculosis. But question is that whether death is purely because of tuberculosis or something more which resulted into death of deceased. Megha Jani has relied upon PM report. It may happen that while making endorsement on PM report, whatever found by doctor from body has to be narrated in PM report. It may be that deceased was suffering from tuberculosis. But question is that whether death is purely because of tuberculosis or something more which resulted into death of deceased. The disease tuberculosis is not such a serious disease which resulted into all of sudden death of any person but, at the time of accident, deceased was suffering from tuberculosis as per PM report placed on record before Commissioner to have injury on ribs on 9.1.1985 which give additional factor for death of concerned employee. If there was no injury, question of immediate death of concerned employee may not have arisen. The disease tuberculosis has not been arisen all of a sudden but it is long process and also treatment require long process. So, submission made by learned Advocate Ms. Megha Jani relying upon PM report that death is purely on basis of tuberculosis and there was no connection with accident, cannot be accepted, in light of fact that on 9.1.1985 accident being an undisputed fact, evidence of widow Exh.13, deceased received injury on ribs, tuberculosis has also connection with ribs and lungs. Therefore, because of injury received by deceased on ribs which having direct connection with death of concerned workman. Therefore, facts have been proved by evidence of claimant Exh.13 and there was no rebuttal evidence produced by Insurance Co. before Commissioner. Therefore, evidence of widow remained unchallenged and workman died because of receiving injury, may be suffering from tuberculosis at the time when accident occurred but it was not a real cause of death of workman but, workman has died because of receiving injury on 9.1.1985 which having direct proximate cause of death of concerned employee. Therefore, contention raised by learned Advocate Ms. Megha Jani cannot be accepted and decision which has been relied by her in case of Shakuntala Chandrakant Shreshti (Supra) is not helpful to her. 8. Therefore, looking to facts which are on record, according to my opinion, Commissioner is perfectly justified in arriving at the conclusion which is based on legal evidence and has not committed any error which requires interference by this Court. 8. Therefore, looking to facts which are on record, according to my opinion, Commissioner is perfectly justified in arriving at the conclusion which is based on legal evidence and has not committed any error which requires interference by this Court. This Court has to consider only one fact that on basis of evidence on record, whether death of workman having any connection with accident and it has been occurred during course of employment or not. These facts are proved by evidence of widow at Exh.13 and therefore, Commissioner has rightly come to conclusion that accident occurred on 9.1.1985 is leading factor for deteriorating the condition of deceased and cause of his death. For that, Commissioner has not committed any error which requires interference by this Court. 9. In respect to calculation, learned Advocate Ms. Megha Jani submitted that compensation which has been worked out by Commissioner on basis of provisions of MV Act, therefore, it requires to be re-calculated on basis of provisions of W.C. Act. There is a dispute about age of deceased. In PM report, which has been heavily relied upon by her, where age of deceased mentioned as 35 and in document produced by Abad Dairy, it has been mentioned as 50 years. Therefore, before Commissioner, a specific written argument at Exh.44 stated by Insurance Co. in Para.9 that it is not acceptable that deceased was aged 35 years and at the most, his age may be treated as 40 years and accordingly, as per old law and prior to recent amendment, compensation can be calculated (Rs. 1000 (40%) = Rs. 400, Rs. 400 x 184.17 (relevant factor) = Rs. 73,668/-) and if it is 35 years and relevant factor 197.06, total amount comes to Rs. 78,424/-. According to my opinion, there was no other evidence by claimant to establish age of deceased. However, Commissioner has rightly considered age of 35 years as mentioned in PM report and age which has been recorded in documents of Abad Dairy which is not based on any evidence, therefore, it cannot be considered. The age of 35 years of deceased as mentioned in PM report based on medical assessment made by doctor. Therefore, it should have to be relied. Therefore, amount of compensation which was awarded by Commissioner at Rs. 1 lac, it should have to be reduced to Rs. The age of 35 years of deceased as mentioned in PM report based on medical assessment made by doctor. Therefore, it should have to be relied. Therefore, amount of compensation which was awarded by Commissioner at Rs. 1 lac, it should have to be reduced to Rs. 78,424/- and to that extent, present appeal is partly allowed and order passed by Commissioner is modified to the effect that now appellant - Insurance Co. is directed to pay Rs. 78,424/- with 6% interest from date of accident till date of payment which is to be worked out and whatever additional amount is to be refunded to appellant - Insurance Co. by Commissioner. For that, necessary application is to be made by appellant Insurance Co. before Commissioner where amount is lying. The Respondent No. 7 - Abad Dairy is directed to deposit Rs. 25,000/- being an amount of penalty as per order passed by Commissioner before W.C. Commissioner, Ahmedabad within a period of one month from date of receiving copy of this order. R & P to be sent back forthwith. 10. The W.C. Commissioner, Ahmedabad is directed to disburse amount in favour of respondent claimant by account payee cheque in name of Naimbibi Chotubhai Kureshi after deducting Rs. 21,576/- and rest of amount is to be disbursed in favour of respondent claimant by account payee cheque in her name after proper verification. 11. The W.C. Commissioner, Ahmedabad is further directed that after realizing the amount of Rs. 25,000/- towards penalty from Respondent No. 7 - Abad Dairy, same be paid to respondent claimant Naimbibi Chotubhai Kureshi by account payee cheque in her name after proper verification. 12. It is made clear by this Court while exercising powers under Order 41 Rule 33 of CPC that upon amount of Rs. 21,576/- the appellant - Insurance Co. is not entitled any amount of interest while refunding same by Commissioner to appellant - Insurance Co. (See : AIR 1982 SC 98 ). 13. The appellant - Insurance Co. is also not entitled interest on the ground that after order passed by this Court, amount deposited by Insurance Co. was invested by W.C. Commissioner, Ahmedabad and interest accrued thereon periodically paid to respondent claimant. Therefore, now on this ground also, appellant Insurance Co. is not entitled any amount of interest upon Rs. 21,576/-. Therefore, this Court has rejected request made by learned Advocate Ms. Jani. was invested by W.C. Commissioner, Ahmedabad and interest accrued thereon periodically paid to respondent claimant. Therefore, now on this ground also, appellant Insurance Co. is not entitled any amount of interest upon Rs. 21,576/-. Therefore, this Court has rejected request made by learned Advocate Ms. Jani. 14. In facts of this case, existence of insurance policy not challenged by appellant. Duration of insurance policy covering date of accident is also not disputed by appellant. On 9.1.1985, accident occurred is also not disputed by appellant because register of accident produced before Commissioner by employer - Abad Dairy. So, only question because of death of workman disputed by appellant and calculation being an alternative argument disputed by appellant. The Commissioner has considered entire evidence on record as well as various decisions cited by advocate of claimant. There is no decision cited by appellant before Commissioner. Therefore, Commissioner, who has discussed evidence and examined question of compensation while giving reasons in support of its conclusion are quoted as under : “I have considered all above judicial precedent on the subject and in my view they do support the case of the claimant. L.A. For the Insurance Company has not cited any precedent in support of his written argument but try to distinguish the fact of the case by arguing that insurance policy Ex.37 does not contain the name of the deceased, hence, he is not covered by Policy. Against this, L.A. For the Opponent No. 1 employer submits that the deceased is covered under the policy and vehicle involved in the accident is insured with the Opponent No. 2, insurance Company and the workman was included in even group insurance. Against this, L.A. For the Opponent No. 1 employer submits that the deceased is covered under the policy and vehicle involved in the accident is insured with the Opponent No. 2, insurance Company and the workman was included in even group insurance. Since the employer who is having best information and the knowledge about the accident and about the fact that the vehicle is insured with the Opponent No. 2, deceased is covered under the risk of accident as per the policy Ex.37 and since no contrary evidence or records are produced by the opponent, looking to the settled legal position I am of the view that the deceased Chothubhai was died out of the employment injury and even probable cause of death narrated in P.M. Note is to be kept in mind the facts remained that even the deceased was having any presumption of accident and death occurred due to such accident can not be rejected, hence, I have answered issue No. 2, 3, accordingly. 3. Point No. 4 Since I have found that the deceased is died out of the employment injury and he is a workman under the workman Compensation Act and at the time of accident and death he was covered by the insurance policy Exh.37. The Opponent No. 2 Insurance company is liable to pay compensation to the claimants herein, but ti is proved before me by an oral evidence Ex.13 and the documentary evidence Ex.29 and Ex.30 that the claimant has given a statutory notice to the Opponent No. 1 on dated 12.10.1985 and admittedly no reply to this notice is given at the earlier point of time. Reply of this notice was given then the claimant should have a knowledge of the fact that the insurance company is there and they could have joined them from the beginning. Therefore only due to the negligence at unreasonable attitude of the Opponent No. 1, the insurance company was joined as party on dated 13.3.1995. Hence, the result of delay is attributable to the Opponent No. 1. Hence, in my view the Opponent No. 1 is also liable to pay some penalty for their conduct. Therefore only due to the negligence at unreasonable attitude of the Opponent No. 1, the insurance company was joined as party on dated 13.3.1995. Hence, the result of delay is attributable to the Opponent No. 1. Hence, in my view the Opponent No. 1 is also liable to pay some penalty for their conduct. The Insurance company in their written argument at Ex.44 stated in Para 9 that it is not acceptable that the deceased was of age of 35 years and at the most his age may be treated as 40 years and accordingly as per the old law, prior to the recent amendment the compensation can be calculated as under: Rs. 1000 (40%) = 400; Rs. 400 x 184.17 (relevant factor= Rs. 73668=00 But despite of this calculation arrived by the insurance company they have not cared to deposit the amount with the office of the commissioner, therefore they are liable to pay interest. Hence, I have answered this point accordingly. 4. Point No. 5 Considering the fact of this case I am of the view that the opponents are liable to pay the compensation for the reasons stated in discussing point No. 4. The first liability towards the payment of the compensation is of Opponent No. 2 and for the penalty part Opponent No. 1 is responsible and liable. Hence, I am required to determine the amount of the compensation. The applicant’s case is that the deceased was of 35 years of age at the time when he died. The Opponent No. 1 do not dispute it but the Opponent No. 2 is doughing this statement, as such there is no direct evidence with regard to the age of the deceased workman. The postmortem note indicates 35 years. The Opponent No. 1 has not produced any such records to verify it but in absence of any other documents and since the employer- Opponent No. 1 has not disputed this aspect and considering the oral testimony of the applicant in this regard, I am of the view that the applicant is right in saying that the deceased was of the age of 35 years at the time of his death. Hence, considering his salary as Rs. 1000=00 and considering the single unit for the minor and double for the major, there will be nine units, hence, each unit will be of Rs. Hence, considering his salary as Rs. 1000=00 and considering the single unit for the minor and double for the major, there will be nine units, hence, each unit will be of Rs. 111 and hence, the deceased is of Rs. 220/- for two units and accordingly Rs. 1000-220=780 x 12 =9360x 15= 1,40,000=00. But the claimant has claimed Rs. 1,00,000 only. Hence, I cannot go beyond the claim and award compensation. Therefore, I feel the applicants are entitled to receive the compensation of Rs. 1 lakh with running interest at the rate of 6% from the date of the accident and same shall be paid by the Opponent No. 2 Insurance company. The applicants are also held entitled to receive Rs. 25,000/- by way of penalty from the Opponent No. 1- employer.” 15. The age of deceased recorded in inquest panchanma is 35 years. So, in number of documents where age of deceased is mentioned 35 years. The age of 50 which is mentioned in register of accident produced by employer is without any evidence. The age of deceased mentioned in PM report after medical examination is more reliable, therefore, same has been rightly considered by Commissioner. The work ‘accident’ is not defined either in MV Act or W.C. Act. Therefore, it amounts to untoward incident being an unexpected incident all of a sudden occurred and due to that, workman died. In facts of this case, on 9.1.1985 while getting down from truck, the dress of deceased got entangled with a hook of truck which he lost balance and that is how he fell down on earth and received injuries on ribs and on the next day, he having complained to his wife that he is having chest pain and that is how he was admitted on 10.1.1985 in V.S. Hospital. That facts have also been supported by certificate produced on record as well as evidence of widow vide Exh.13. So, on 9.1.1985 workman was on duty from 8.00 a.m. to 8.00 p.m. meanwhile accident occurred. So accident occurred during course of employment and received injury on ribs having chest pain next date and he was admitted in V.S. Hospital during treatment he died. This undisputed facts are proved a direct casual connection of accident having proximate result of death of workman, may at relevant time he was suffering from tuberculosis disease. So accident occurred during course of employment and received injury on ribs having chest pain next date and he was admitted in V.S. Hospital during treatment he died. This undisputed facts are proved a direct casual connection of accident having proximate result of death of workman, may at relevant time he was suffering from tuberculosis disease. But he was not died only because of tuberculosis disease. He was died receiving injuries on ribs which accelerated being a direct cause for death of workman. Therefore, merely relying upon PM report is not proper because it was not giving clear picture to have internal injury on ribs which result was accelerated cause of death of workman. Therefore, finding of fact given by Commissioner on basis of evidence on record and when appellant Insurance Co. has not produced any contrary evidence or rebuttal evidence, then Commissioner has rightly relied upon evidence of widow and relevant documents and come to correct conclusion which cannot be considered to be a finding given by Commissioner is baseless, perverse or arbitrary. On the contrary, finding given by Commissioner is based on legal evidence and conclusion is not based on presumption. Therefore, contention raised by learned Advocate Ms. Megha Jani cannot be accepted. P P P P P