JUDGMENT 1. In present appeal under Section 30 of the Workmen's Compensation Act 1923, the applicants-appellants have brought under challenge the award dated 31.3.1992 passed by the Commissioner for Workman's Compensation (hereinafter referred to as the Commissioner ) in Workman's Compensation Case No. 146 of 1989 whereby the learned Commissioner has rejected the claims-case filed by the heirs/legal representatives of the deceased workman. Aggrieved by the said rejection of the application, the appellants are before this Court. 1.1 The appellants are heirs/legal representatives of the deceased Mr. Mohmmed Abdul Gani and they are also, as per the claim in the application dependent within the meaning of the term as contained under Section 2(d) of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act ). 2. The applicants had filed Workman's Compensation Case No. 146 of 1989 stating, inter alia, that the deceased, the husband of the applicant No. 2, was working in the shop of the opponent No. 1 since last three years as a Sales-cum-Weighman. He was on duty on 22.12.1988. While on duty he complained about chest pain, hence he was taken to the hospital where he was given primary treatment and thereafter he was shifted to the hospital of Dr. Mehta however he succumbed to the pain, and died. Since the compensation was not paid within the time prescribed by the Act, the applicants preferred the compensation case on the ground that the death had occurred due to and in the course of employment and that therefore the opponent No. 1 was liable to pay the compensation as per the provisions under the Act. The opponent No. 2 happened to be the insurer, hence the applicants claimed that the opponent Nos. 1 and 2 were jointly and severally liable to pay the compensation, interest and penalty under the Act. On such premise the applicants impleaded the opponent Nos. 1 and 2 in the aforesaid proceeding. The appellants claimed that at the time of his death the deceased was 40 years old and was earning Rs. 1200/- per month and the death was on account of accident arisen out of and in the course of employment within the meaning of the phrase under Section 3 of the Act. The appellants claimed Rs. 75,000/- towards compensation. They also claimed penalty and interest in accordance with the provision of the Act. 1200/- per month and the death was on account of accident arisen out of and in the course of employment within the meaning of the phrase under Section 3 of the Act. The appellants claimed Rs. 75,000/- towards compensation. They also claimed penalty and interest in accordance with the provision of the Act. 2.1 The application was resisted by the opponents. The opponents filed their reply at exhibit 9 and exhibit 11. The opponent No. 1 admitted that the deceased Mr. Mohmmed Abdul Gani was serving in his shop and on 22.12.1988 he was on duty. The appellant No. 1 also admitted that at the material point of time the deceased was performing his duty. The opponent No. 1 also conceded the fact that while performing his duty the deceased had complained about chest pain hence he was taken to the hospital where he died despite the treatment. The opponent No. 1, however, denied that the deceased was earning Rs. 1,200/- per month and claimed that the deceased was being paid Rs. 800/- per month. The opponent No. 1 also claimed that since the employees employed in his shop were insured with opponent No. 2, he was not liable to pay compensation. The opponent No. 1 claimed that the notice by the appellants was duly replied and since the appellants failed to supply necessary documents and details, there was no liability to pay the penalty and/or interest. The opponent No. 2 in its reply denied all assertions and allegations of the applicants and claimed that the application deserved to be dismissed. 2.2 During the proceeding the applicant No. 1 was examined at exhibit 12. Dr. Mehta was also examined and his evidence was recorded at exhibit 25. The evidence of opponent No. 1 was recorded at exhibit 33. The contesting parties also produced various documents on record. The learned Commissioner framed below mentioned four issues. 1. Whether applicants prove that deceased Abdul Mohammed Abdul Gani was workman of the opponent No.1? 2. Whether applicants prove that deceased died due to an accident during the course of and arising out of the employment of the opponent No. 1? 3. Whether applicants are entitle to claim compensation, if yes, what amount and from when? 4. 1. Whether applicants prove that deceased Abdul Mohammed Abdul Gani was workman of the opponent No.1? 2. Whether applicants prove that deceased died due to an accident during the course of and arising out of the employment of the opponent No. 1? 3. Whether applicants are entitle to claim compensation, if yes, what amount and from when? 4. Whether applicants prove that opponents have neglected to make the payment of compensation, if yes, whether applicants are entitle to claim amount of interest and penalty and from when? After considering the evidence and entire material on record the learned Commissioner replied the issues at serial No. 1, 3 and 4 in the negative and the issue at serial No. 2 in the affirmative. 2.3 The appellants have also assailed the learned Commissioner's decisions with regard to issues No.1, 3 and 4. 3. Mr. Vishal B Mehta learned advocate for Mr. A.J. Shastri learned advocate has appeared for the appellant(s) and Mr. Vibhuti Nanavati learned advocate has appeared for the opponent-Insurance Company. The opponent No. 1-the employer has chosen to abstain. His presence is through the written reply filed before the learned Commissioner and his evidence recorded at Exhibit 31. It is not in dispute that the opponents No. 1 and No. 2 have not filed any cross objections, not even against the learned Commissioner's findings qua issue No. 2. Hence much deliberation about the said findings (qua issue No. 2) is not necessary. 4. Heard the learned Counsel. Few undisputed facts:- It is not in dispute that:- (a) the opponent No.1 was running a shop of hardware. (b) the deceased was employed by the opponent No. 1 in his shop and was working as Sales-cum-Weighman. (c) by nature of his work and duty the deceased was required to lift heavy hardware articles and shift the material from one place to another. (d) the age of deceased at the time of accident was 40 years (e) while on duty he suffered chest pain, and (f) the opponent No. 2 was the insurer and the employees of opponent No. 1 were insured and the policy was alive at the time of death. 5. (d) the age of deceased at the time of accident was 40 years (e) while on duty he suffered chest pain, and (f) the opponent No. 2 was the insurer and the employees of opponent No. 1 were insured and the policy was alive at the time of death. 5. So as to ascertain whether the death can be said to have occurred out of and in the course of the employment or not, it was necessary to find out whether there was any causal connection between the pain and the death on one hand and his employment on the other hand. It is, therefore, relevant to recall that the deceased died after complaining about chest pain. 5.1 It emerges from the record that the shop in which the deceased was employed was a hardware store and the victim was working as a sales-cum-Weighman. Hence, on account of the nature of his work & demand of the job the deceased was required to perform duties such as lifting, removing, carrying the material outside the shop, stalking etc. which involved physical stress and strain. On the unfortunate day and at the time when he complained about the chest pain which resulted in death also he was discharging similar duties (at the age of 40 years). In such facts and circumstances how else the death of the victim could be categorized if not out of and in the course of employment. 5.2 The learned Commissioner has concluded that the causal connection was established and the death was an accident which occurred out of in the course of the employment. In view of the facts of this case and in light of the evidence on record, the conclusion of the learned Commissioner holding that the causal connection was duly proved, cannot be faulted. 6. The appellants have submitted that having held that there was causal connection between the injury, the accident and the nature of employment/work, the learned Commissioner was not justified in rejecting the application on the ground that the appellant cannot be said to be a workman of the opponent No. 1. More so when the opponent No. 1 had, in terms, admitted that the deceased was employed in his shop as Sales-cum-Weighman and was his workman. 7. More so when the opponent No. 1 had, in terms, admitted that the deceased was employed in his shop as Sales-cum-Weighman and was his workman. 7. Now, so far as the first issue is concerned, to deal with and to reply the said issue the learned Commissioner has relied upon entry No. xxvi in the second schedule of the Act. 7.1 It may be mentioned at this stage that as per the provision contained under Section 3 of the Act, the employer becomes liable to pay compensation if personal injury is caused to a workmen by accident arising out of and in the course of his employment. 7.2 Hence, as per the provision, the condition precedent, to give rise to the obligation to pay compensation is (1) that the victim of the accident should be a workman within the meaning of the term defined under Section 2(n); and (2) he must have suffered personal injury on account of the accident; and (3) the accident must have occurred out of and in the course of employment ; and (4) the injury must be such which results in death or total or partial disablement (of the victim-workman) for more than 3 days, and (5) the victim-workman must not be under influence of drink or drugs and/or should not have acted by disregarding the safety rules and instructions. 7.3 In order to examine appellants' challenge against learned Commissioner's findings on the issue No. 1, it is also relevant to note at this stage that the term workman has been defined under Section 2(n) which reads thus:- 2(n) "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is- (i) a railway servant as defined in clause (34) of Section 2 of the Indian Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. (2) The exercise and performance of the powers and duties of a local authority or of any department 5*[acting on behalf of the Government] shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department. (3) The Central Government or the State Government, by notification in the Official Gazette, after giving not less than three months' notice of its intention so to do, may, by a like notification, add to Schedule II any class of persons employed in any occupation which it is satisfied is a hazardous occupation, and the provisions of this Act shall thereupon apply in case of a notification by the Central Government within the territories to which the Act extents, or in the case of a notification by the State Government, within the State, to such classes of persons: Provided that in making addition, the Central Government or the State Government, as the case may be, may direct that the provisions of this Act shall apply to such classes of persons in respect of specified injuries only. 7.4 It can be seen from the impugned award that so far as the present case and the rival contention are concerned, the sub-clause (ii) of Section 2(n) is relevant which, inter alia, provides that any person who is employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; would be a workman excluding the persons working in the capacity of the members of the Armed Forces of the Union. 7.5 It is in view of the said provision that the learned Commissioner, so as to determine as to whether the deceased can be said to be workman or not and to address the issue at serial No. (1), referred to the schedule II of the Act and entry No. (xxvi) thereunder. The said Entry (xxvi) of schedule II reads thus:- Employed in the handling or transport of goods in, our within the precincts of,- (a) any warehouse or other place in which goods are stored, and in which on any one day of the preceding twelve months ten or more persons have been so employed, or (b) any market in which on any one day of the preceding twelve months fifty or more persons have been so employed. 7.6 Upon taking note of the said entry No. xxvi, the learned Commissioner, has observed and recorded that in his view, in the facts of the case, the said entry No. xxvi would be attracted. The learned Commissioner has also observed that the said entry provides that, to come within the meaning of the term workman under the Act, person should be employed in a warehouse where on any day of the preceding 12 months 10 or more persons had been employed or in any market in which on any day of the preceding 12 months 50 or more persons had been employed. The learned Commissioner has, after referring to the said entry, observed that since the number of persons employed in the establishment of the opponent was less than 10 the deceased cannot be considered a workman. The learned Commissioner has, after referring to the said entry, observed that since the number of persons employed in the establishment of the opponent was less than 10 the deceased cannot be considered a workman. 7.7 So far as the number of persons employed in the shop is concerned, it appears that clear evidence which could conclusively establish the total number of employees was not on record before the Commissioner, and in absence of any clear evidence with regard to the number of persons employed in the establishment/shop of the opponent No. 1, the learned Commissioner has resorted to a presumption about the number of employees employed by the opponent No. 1. The learned Commissioner has assumed, in the light of the details filled-up in the policy document, that only three persons were employed by the opponent No. 1 in his shop. It appears that probably the policy was taken out for three employees, hence the learned Commissioner assumed that the total number of employees in the shop must not have exceeded 10 on any day in 12 months. The said assumption is, however, not disputed by the appellants. Thus there is no controversy on this count. 7.8 As noted earlier, the appellants have, however, challenged the conclusion of the learned Commissioner that the deceased cannot be considered a workman. 7.9 The place of employment of the deceased was a shop . But for the fact that the victim was, as admitted by the opponent No. 1, employed in a shop , the said conclusion of the learned Commissioner could not be faulted inasmuch as, according to the provisions of the Act the victim of an accident (arising out of and in the course of employment) must have been engaged in any schedule employment. 7.10 However, the learned Commissioner, has while concentrating only on the Entry No.xxvi of the Schedule, ignored the vital fact that the deceased was employed in a shop. The learned Commissioner also over-looked a relevant provision having material bearing on the issue addressed in the impugned award. 7.11 It deserves to be noted that by virtue of Section 38-A of the provisions of Bombay Shops & Establishments Act, 1948 (hereinafter referred to as shops Act ) the provisions of the Workmen's Compensation Act have been made applicable to the Shops & Establishments covered under the Shops Act. 7.11 It deserves to be noted that by virtue of Section 38-A of the provisions of Bombay Shops & Establishments Act, 1948 (hereinafter referred to as shops Act ) the provisions of the Workmen's Compensation Act have been made applicable to the Shops & Establishments covered under the Shops Act. The said Section 38-A reads thus: Sec.38-A Application of Act VIII of 1923 to employee of establishment. - The provisions of the Workmen's Compensation Act, 1923 (VIII of 1923) and the rules made from time to time thereunder, shall mutatis mutandis, apply to every employee (other than an employee who is in receipt of monthly wages exceeding [one thousand rupees] of an establishment to which Act applies [ * ]. Explanation For the purposes of this section the expression `wages' shall have the same meaning as is assigned to it under the Workmen's Compensation Act, 1923. (VIII of 1923).] 7.12 Since the aforesaid section refers to the establishment to which the Act applies it would be necessary to take into account the definition of the term "establishment provided under Section 2(8) of the Shops Act which reads thus: Establishment means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the [State] government may, by notification in the Official Gazette, declare to be an establishment for the purposes of this Act 7.13 It is also apposite to take into account the definition of the term shop . The terms is defined thus, under Section 2(27) of the Shops Act:- Shop means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a store room, godown, warehouse or work place, whether in the same premises or otherwise, (mainly used) in connection with such trade or business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. 7.14 It thus becomes clear that the establishment in which the deceased was employed was a shop . Thus it would be covered within the definition of the term Establishment under Section 2(8) of the Shops Act. 7.14 It thus becomes clear that the establishment in which the deceased was employed was a shop . Thus it would be covered within the definition of the term Establishment under Section 2(8) of the Shops Act. As noticed earlier Section 38A of the Shops Act provides that the provisions of the 1923 Act shall apply to every employee (other than the persons drawing salary of more than rupees one thousand) of an establishment to which the Act applies. 7.15 The provisions of the Act of 1923 have been, to the aforesaid extent, incorporated in the Shops Act. The object of the legislature is to extend the benefits of the Act of 1923 to the persons who are employees employed in the shops or establishments to which the Shops Act applies. Hence, by virtue of the provision under Section 38-A of the Shops Act, the provision of the Act of 1923 are made applicable to the shop and the establishment under the Shops Act. 7.16 Consequently if a person is an employee of an establishment under the Shops Act and is employed for wages (within the prescribed peculiary limit) then the provisions of the Act of 1923 shall be, subject to the peculiary limit, available to such person. 7.17 In present case the deceased was employed as sales-cum-weighman and was drawing wages to the tune of Rs. 800/- (i.e. less than the prescribed limit of Rs. 1,000/-) and the place of his employment was a Shop within the meaning of the term under Section 2(27) of the Shops Act, the provision and benefits of the Act of 1923 would be available in his case. 7.18. In this view of the matter, the conclusion of the learned Commissioner that the deceased cannot be said to be workman , for the purpose of the claim and the benefit under the Act, cannot be sustained. 8. At this stage, it deserves to be mentioned that Mr.Nanavati, learned counsel has fairly submitted that the policy taken out by the opponent No.1 was shopkeeper's policy by virtue of which the persons employed in the shop would stand covered. In this view of the matter also the conclusion of the learned Commissioner is not sustainable and cannot be accepted. At this stage, it deserves to be mentioned that Mr.Nanavati, learned counsel has fairly submitted that the policy taken out by the opponent No.1 was shopkeeper's policy by virtue of which the persons employed in the shop would stand covered. In this view of the matter also the conclusion of the learned Commissioner is not sustainable and cannot be accepted. 8.1 Hence the said finding of the learned Commissioner is set aside and it is held that the heirs/LRs of the deceased are entitled for compensation under the provisions of the Act of 1923 and they cannot be deprived of or cannot be denied the compensation under the Act of 1923 as well as the benefit of interest and penalty as prescribed under Section 4(A) of the Act . 9. Since the finding of the learned Commissioner holding that the claimants/heirs of the deceased are not entitled for compensation has been set aside, the question of calculation of the compensation payable under the Act arises. 9.1 Ordinarily, when the quantification is not made the matter would be required to be remanded to the learned Commissioner for calculating the amount payable under the provisions of the Act. However, so far as present case is concerned, it is already 21 years old hence it would be adding to the agony of the appellants if the case is remanded for such purpose. Furthermore, there is no dispute between the parties regarding the relevant factors which are to be taken into account for calculating the compensation payable as per the Act. 9.2 The contesting parties have agreed and are ad-idem on the point that it may not be necessary to remand the matter to the learned Commissioner. The parties have also agreed and declared that the parties have no issue as regards quantification. There is no dispute between the parties regarding the birth date/age of the deceased and/or about the wages which were being paid to the deceased. The parties are also not at dispute so far as the applicable multiplier is concerned. The parties have also agreed and declared that the parties have no issue as regards quantification. There is no dispute between the parties regarding the birth date/age of the deceased and/or about the wages which were being paid to the deceased. The parties are also not at dispute so far as the applicable multiplier is concerned. 9.3 Hence, taking into account the monthly wages of the deceased at the rate of Rs.800/- per month (as stated by the employer) and his age at the time of accident as 40 years and applying the multiplier/factor of 184.17 (as per Schedule 4), the amount payable towards compensation would come to Rs.73,668/- as per calculation mentioned hereinbelow: Rs.800 x 50 x 184.17 / 100 = Rs.73,668/-. 9.4 As to this limited extent touching the compensation amount (i.e. calculation and quantification of the principal amount of compensation) there is no dispute between the parties so far as the quantification is concerned. 10. The appellants have claimed that over the said amount interest would be payable at the rate of 6% from the date on which the compensation fell due. The appellants have also prayed that for the delay caused by the employer penalty may be imposed. 10.1 Mr.Nanavati, learned advocate for the opponent-company has raised an objection on these counts contending, inter-alia, that since the policy was taken out under the provisions of Workmen Compensation Act, the insurance company cannot be held liable to pay any interest beyond or in excess of the statutory interest @ 6% per annum. He also submitted that the Insurance Company would not be liable to pay any amount towards penalty for the delay and default caused by the employer. In this context Mr.Nanavati has relied upon the judgment in the case between Ved Prakash Garg vs. Premi Devi & others ( 1997 (8) SCC 1 ) wherein the Hon'ble Apex Court held that:- ....So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4-A(3)(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone. The said objection of Mr.Nanavati, therefore, deserves to be accepted. The said objection of Mr.Nanavati, therefore, deserves to be accepted. 11.1 So far as the Act of 1923 is concerned, unlike the Motor Vehicle Act, it is not a statutory obligation under the Act of 1923 to take-out insurance policy and to insure the workmen. Thus, if the employer gets the workmen insured then it would not be in discharge of any statutory obligation but it will be purely contractual and would be in the realm of contract between the insured and the insurance company and the relations and liability will be governed by the terms of the policy which may be mutually agreed by and between the parties. Even otherwise penal liability cannot be transferred or passed over. Thus, so far as the issue regarding payment of penalty is concerned, it would be the sole liability of the opponent No.1-employer alone to pay the amount towards penalty. 12. In view of the foregoing discussion, following directions are passed: (a) In view of the provision under Section 38-A of the Act of 1948 read with the provision of Act of 1923 the finding of the learned Commissioner that the deceased cannot be considered workman and that therefore the claim case was not maintainable, is set aside. (b) Consequently the appellants shall be entitled to claim and receive the compensation. The applicants shall be entitled to receive Rs.73,668/- towards compensation with interest at the rate of 6% per annum from the date the compensation fell due as per the Act of 1923. (c) The appellants will also be entitled for additional compensation by way of penalty at the rate of 30%, however, the said liability shall have to be discharged only by the opponent No.1 employer and not by the insurance company. 13. With the aforesaid clarifications and directions, the appeal is partly allowed.