JUDGMENT A.N. VENUGOPALA GOWDA, J.—Respondents 1 to 4 herein, filed claim application before the Commissioner for Workmen’s Compensation, O.K., Sub-Division I, Bendoorvel, Mangalore, against respondent No. 5 and the appellant, to direct the deposit of compensation, on account of the loss suffered due to death of one Mr. Musthab, who sustained injuries in an accident that occurred on 18.9.05 during the course of employment as a cleaner in Lorry bearing registration No. KA-19/3486, which belonged to the 5th respondent herein and was insured by the appellant. The claim having been allowed in part and the appellant having been directed to deposit the compensation amount of Rs. 3,32,739/- with simple interest at 12% p.a. with effect from 29,8.07, this appeal has been filed. For convenience, the parties would be referred to with reference to their rank in the claim application, 2. The case of the petitioners in the claim petition filed, in brief, is as follows: Petitioners are the parents, wife and daughter respectively of Abdul Musthab, who was employed by Mr. Askar Ali-1st respondent, to work as a cleaner in his vehicle bearing registration No. KA-19/3486, That on 17.9.05, fish was loaded to the vehicle and was delivered at Bhatkal on 18.9.05, On their return, when the vehicle reached Paduvara Village, Keiagina Jadclu, the radiator of the vehicle having heated up, the driver instructed Abdul Musthab to draw water from the nearby river side to fill in the radiator and also wash the vehicle. As per instructions of the driver, Abdul Musthab went towards the river side in order to fetch water for filling in the radiator and washing of the vehicle and while coming back, he slipped, fell in the water and succumbed to death. The jurisdictional police registered case in UDR No. 23/05. Deceased was 31 years of age and was earning Rs. 5,000/- as wages in addition to Rs. 100/- per day as bhata from the owner. Since accident occurred during the course of employment resulting in death of Abdul Musthab, compensation of Rs. 8,23,920/- with interest was claimed by filing a petition before the Commissioner for Workmen’s Compensation on 8.11.2005. 3. The owner of the said vehicle filed written statement dated 23.2.2006. He also filed additional written statement dated 17.11.2006. Since accident occurred during the course of employment resulting in death of Abdul Musthab, compensation of Rs. 8,23,920/- with interest was claimed by filing a petition before the Commissioner for Workmen’s Compensation on 8.11.2005. 3. The owner of the said vehicle filed written statement dated 23.2.2006. He also filed additional written statement dated 17.11.2006. The appellant who was the second respondent in the claim petition filed written statement on 25.1.2006, contesting the claim, It was inter alia contended that, the vehicle was not involved in the accident, there is no nexus to the employment and to the death. The wages allegedly paid was also denied. 4. Based on the pleadings, six issues were raised. Evidence of Mr, Mohammed, by way of affidavit dated 28.3.06 was filed and Exs.P1 to P3 were marked. He was cross-examined on 3.8.2006. 5. The 2nd respondent-Insurance Company filed application dated 23.3.2007 to summon Dr. Hafiz Ur Rehman, Medical Officer, Primary Health Centre, Shirur-576 228. The said Medical Officer was examined on 10.4.07 and was subjected to cross-examination. Exs.R1 to R3 were marked through him. Ex.R4 is the insurance policy in respect of the vehicle for the period from 23.2.2005 to 22.2.2006. The owner of the vehicle deposed on 18.2.2006 and was cross-examined on 26.6.2007. Driver of the vehicle-Vasu deposed on 30.10.2006 and was cross-examined on 26.6.2007. 6. Considering the rival contentions, written arguments submitted by the parties, the Commissioner passed the Judgment and Order dated 29.8.2007, whereby the appellant was directed to deposit the compensation of Rs. 3,32,739/- with simple interest at 12% p.a. 7. Sri P.B. Raju, learned counsel appearing for the appellant firstly contended that, the vehicle was not involved in the accident. Secondly, death is not on account of any employment injury. Thirdly, the Post Mortem report indicates that death was due to heart attack and the Commissioner is not justified in ignoring the same. Lastly, in view of the medical report- Ex.R3 showing that death was due to myocardial infection and the case pleaded and sought to be proved by the claimants, that the deceased died due to drowning in the pond being otherwise, the impugned Judgment/Order is perverse and illegal. 8. Lastly, in view of the medical report- Ex.R3 showing that death was due to myocardial infection and the case pleaded and sought to be proved by the claimants, that the deceased died due to drowning in the pond being otherwise, the impugned Judgment/Order is perverse and illegal. 8. Smt. Neeraja Karanth, learned counsel appearing for the respondents 1 to 4/the claimants, on the other hand, contended that, the issues were framed by the Commissioner based on the pleadings of the parties and in the written statement filed by the appellant which was the 2nd respondent in the claim petition, it was not pleaded that, there was no nexus between the employment injuries and the death by making any reference to the Post-Mortem report or the cause of death being due to myocardial infection. Learned counsel pointed out that at the fag end of the proceedings, the P.M. report-Ex.R3 was introduced and a case of death due to myocardial infection was sought to be made out by examining Dr. Hafiz-Ur-Rehman, Learned counsel contends that in the circumstances of the case, the appellant cannot cause surprise by trying to make out a new case in the appeal. Learned counsel submits that the impugned Judgment, if were to be interfered with, to consider the case of the parties with reference to Ex.R2 and R3, the matter may be remanded to the Commissioner, so that, both parties will have opportunity to putforth their respective cases. Learned counsel submits that since the case has been decided by the Commissioner with reference to the materials on record and the finding recorded being on facts, the appeal is not maintainable. 9. Sri Vishwajith Shetty, learned counsel appearing for the 5th respondent, contended that the appellant has come up with a new case and in the circumstances, the matter may be remanded to the Commissioner for consideration afresh, 10. In view of the rival contentions and the record of the case, which I have perused, the question for determination is: “ Whether the impugned Judgment is perverse?” 11. In the written statement dated 24.1,06, filed by the appellant, it has denied all the averments made in the petition, There is no reference to cause of death much less clue to myocardial infection. The petition was filed before the Commissioner on 8.11.2005. The appellant filed its written statement on 24.1.2006 contesting the claim. In the written statement dated 24.1,06, filed by the appellant, it has denied all the averments made in the petition, There is no reference to cause of death much less clue to myocardial infection. The petition was filed before the Commissioner on 8.11.2005. The appellant filed its written statement on 24.1.2006 contesting the claim. The5th respondent filed his written statement dated 23.3.2006 on 24.3.2008. Ex.R3 is dated 18.9.2005, Dr. Hafiz-Ur-Rehman was examined on 10.4.2007, The P.M. report and related records were marked through him. According to Dr. Hafiz-Ur-Rehman, the report of the forensic laboratory-Ex.R2 was received on 23.2.2006. Dr. Hafiz-Ur-Rehman has admitted that he made the entry in the P.M. Register after receipt of Ex.R2. The cause of death was entered in February, 2006. He has made reference to Ex. RS issued in January, 2007. According to him, the person has died on account of the cardiac arrest, which fact came to be known after receipt of Ex.R2. 12. It is clear that the appellant had not pleaded that the cause of death of Abdul Musthab was due to myocardial infection which had no nexus to the employment injuries as a result of the accident. Based on Exs.R1 to R3 which have been marked through Dr. Hafiz-Ur-Rehman, the appellant has attempted to make out a case that the death was due to heart attack and has no nexus to the employment and that the Commissioner is not justified in ignoring Exs.R1 to R3 while passing the impugned Judgment, Since Exs.R1 to R3 are not under challenge, they having been introduced at the fag end of the enquiry before the commissioner, claimants had no opportunity to put forth their plea before the Commissioner. 13. Sri P.B. Raju, fairly submitted that the contention with regard to cause of death raised in this appeal was not pleaded in the written statement filed before the Commissioner and that it is a new plea and ground raised in this appeal. It, therefore, becomes obvious that this new contention was never placed before the Commissioner for his consideration. As this contention which rises a mixed question of law and fact was not pleaded before the Commissioner, the claimants had no opportunity to meet the same. It, therefore, becomes obvious that this new contention was never placed before the Commissioner for his consideration. As this contention which rises a mixed question of law and fact was not pleaded before the Commissioner, the claimants had no opportunity to meet the same. The contention regarding the cause of death and its nexus to the employment injuries as a result of the accident, goes to the root of the matter and becomes relevant for deciding the liability of the employer and the insurer to pay compensation to the dependants of the deceased. 14. Upon consideration of the entire matter, 1 am of the opinion that a material aspect which was not raised before the Commissioner is sought to be urged by the appellant, in this Court for the first time, in the peculiar facts and circumstances of the case, it would be in the interest of justice to remand the matter back to the Commissioner to re-determine the controversy between the parties by raising an additional issue viz., Whether Abdul Musthab died on account of myocardial infection and whether the same has any nexus to the employment injuries sustained in the accident in question ? 15. In view of the above, the appeal is allowed and the impugned Judgment is set aside. The matter is remanded to the Commissioner for Workmen’s Compensation, D.K., Sub-Division I, Bendoorvel, Mangalore, for a fresh decision on merits. The Commissioner shall decide the case after providing reasonable opportunity to the parties to place on record any further materials in support of their respective submissions. The Commissioner to decide the matter as early as practicable and at any event, within 8 months from the date of first appearance of the parties who are hereby directed to appear before the Commissioner on 8,7.11 and receive further orders. 16. It is made clear that, no finding has been recorded on merits of the contentions advanced by either of the parties and all the contentions of both the parties are kept open for decision. 17. Refund the amount in deposit to the appellant. 18. Return the LCR forthwith.