ORDER : G. MINHAJUDDIN, J. 1. Since both these appeals u/s 30 of the Workmen's Compensation Act, 1923 are directed against the award dated 24.7.2009 passed by Commissioner for Workmen's Compensation, Labour Court, Durg (in short "the Commissioner") in Case No. 124/WC Act Fatal/2006, they are being disposed of by this common order. MA(c) No. 2/10 has been filed by the appellant/insurance company against the award dated 24.7.2009, insofar as it relates to fastening of liability upon it to pay compensation along with interest @ 9% p.a. from the date of filing of the claim petition till its payment, whereas MA (c) No. 1253/09 has been preferred by the appellant/employer against the above award so far as it relates to imposition of penalty of Rs. 1,96,000/- upon the employer. 2. For the sake of convenience, parties shall hereinafter be referred to as per their description before the Commissioner. 3. Brief facts of the case are that the applicants are father and mother respectively of deceased Dhannu @ Dhanesh Mishra, who on the date of accident i.e. 21.10.2005 was under the employment of non-applicant No. 1. Deceased Dhannu @ Dhanesh was working as a regular employee on the post of Supervisor under non-applicant No. 1 since last one year. On the date of accident i.e. 21.10.2005 after finishing his duties in the power plant of non-applicant No. 1, the deceased was returning along with his colleague Anil Kumar at about 11 pm to his official residence, situated at a distance of about 2 km from the plant, which was allotted to him by his employer. At the relevant point of time, the deceased was returning by a scooter bearing registration No. CG 07 ZE 1965, which was also given to the deceased in the capacity of Supervisor by his employer. However, on way, the said scooter, driven by the deceased, was dashed by an unknown truck, which was coming from opposite direction, near Village-Anda, on account of which Dhannu @ Dhanesh and his colleague Anil Kumar sustained grievous injuries and Dhanesh succumbed to the same on the spot. Report of the accident was lodged at Police Station-Pulgaon, on which offence was registered under Cr. No. 545/05 u/s 304A of the IPC against the driver of the unknown truck. After investigation as the driver and the offending truck could not be traced, therefore, the police submitted final report (Khatma). 4. Report of the accident was lodged at Police Station-Pulgaon, on which offence was registered under Cr. No. 545/05 u/s 304A of the IPC against the driver of the unknown truck. After investigation as the driver and the offending truck could not be traced, therefore, the police submitted final report (Khatma). 4. At the time of accident, the deceased was aged 20 years and was earning Rs. 3500/- per month by working as Supervisor under non-applicant No. 1. On the basis of these facts, the applicants, who are parents of the deceased and were dependent upon him, filed a claim petition u/s 10 read with Section 22 of the Workmen's Compensation Act, 1923 (in short "the Act") before the Commissioner for compensation to the tune of Rs. 3,92,000/- along with interest and penalty under various heads, from non-applicant No. 1/employer and non-applicant No. 2/insurance company jointly and severally. 5. Non-applicant No. 1/employer submitted its reply and after admitting the contents of paras 1, 2, 4, 5, 6, 7 and 10 of the claim petition, has averred that immediately after receiving information about the untimely death of Dhannu @ Dhanesh Mishra, the employer, without delay, had given information to non-applicant No. 2/insurance company. Non-applicant No. 1 has further averred that it has got WC Act Policy in respect of its employees from non-applicant No. 2/insurance company. The said policy was effective from 21.4.2005 to 20.4.2006, for which a premium of Rs. 62,507/- has been paid by non-applicant No. 1/employer to non-applicant No. 2/insurance company. Therefore, the insurance company is liable to pay compensation to the applicants/claimants i.e. parents of the deceased. 6. Non-applicant No. 2/insurance company filed its reply and pleaded that the insurance company will be liable to pay compensation only if there is no breach of terms and conditions of the insurance policy, and the principal condition of the policy is that the insured must have died or sustained permanent disablement due to an accident arising at the place and during the course of employment. The insurance company has further pleaded that as the accident had occurred out of the premises of non-applicant No. 1/employer when the deceased was returning to his house and that too, by an unknown truck, therefore, the insurance company is not liable under the policy to pay compensation to the applicants/ claimants. The insurance company has further pleaded that as the accident had occurred out of the premises of non-applicant No. 1/employer when the deceased was returning to his house and that too, by an unknown truck, therefore, the insurance company is not liable under the policy to pay compensation to the applicants/ claimants. The insurance company has further pleaded that no information regarding the accident was given to it by the employer. 7. However, learned Commissioner, after hearing counsel for the respective parties and after close scrutiny of the evidence adduced by the parties, by the impugned award imposed a penalty of Rs. 1,96,000/- on non-applicant No. 1/employer and fastened the liability to pay compensation of Rs. 3,92,000/- along with interest @ 9% p.a. on non-applicant No. 2/insurance company. 8. Heard learned counsel for the parties, perused the LCR as also the impugned award. 9. To substantiate the averments made in the claim petition, the applicants/claimants have examined applicant No. 1 Visheshwar Mishra, father of the deceased, and Anil Kumar, co-employee of the deceased, who was accompanying the deceased at the time of accident, as AW-1 and AW-2 respectively. In order to support its contention, non-applicant No. 1/employer has examined its employee P.K. Rao, Personnel Manager, as NA-1/1 and non-applicant No. 2/insurance company has examined its employee Madan Mohan Mishra as NA-2/1. 10. The following substantial questions of law are involved in MA(c) No. 2/10 for consideration:- (i) Whether death of Dhannu @ Dhanesh Mishra occurred on 21.10.2005 due to an accident arising out of and in the course of employment under non-applicant No. 1/employer? (ii) Whether non-applicant No. 2/insurance company is liable to pay compensation to the applicants/claimants under the policy issued by it in favour of non-applicant No. 1/employer? So far as MA(c) No. 1253/09 is concerned, it involves the following substantial question of law for consideration:- Whether the learned Commissioner was justified in imposing penalty upon non-applicant No. 1/employer, without complying with the provisions of proviso to clause (b) of sub-section (3) of Section 4A of the Act? 11. So far as MA(c) No. 1253/09 is concerned, it involves the following substantial question of law for consideration:- Whether the learned Commissioner was justified in imposing penalty upon non-applicant No. 1/employer, without complying with the provisions of proviso to clause (b) of sub-section (3) of Section 4A of the Act? 11. Contention of learned counsel for non-applicant No. 2/insurance company is that the accident had not occurred at the work place i.e. within the premises of the power plant of non-applicant No. 1/employer and in the course of employment, but had occurred outside the premises of the employment when the deceased was returning back to his house and that too, by an unknown truck. Therefore, the insurance company is not liable to pay compensation to the applicants/claimants under the policy. In support of its contention, learned counsel for non-applicant No. 2/insurance company, in addition to oral arguments, has also submitted written arguments along with photocopies of the judgments of the Hon'ble Supreme Court in the matters of Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and Others, AIR 1958 SC 881 ; Mallikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. and another, 2009 (1) ACCD 502 (SC); and Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and Another, (2007) 11 SCC 668 12. On the other hand, learned counsels for the applicants/claimants as well as non-applicant No. 1/employer have supported the impugned award, so far as it relates to fastening of liability upon non-applicant No. 2/insurance company to pay compensation along with interest to the applicants/claimants. However, so far as imposition of penalty is concerned, learned counsel for non-applicant No. 1/employer has contended that the same is illegal and in violation of the proviso to clause (b) of sub-section (3) of Section 4A of the Act as before imposing penalty no opportunity of hearing was afforded to the employer to show cause. 13. On the basis of evidence adduced by the parties, it stands proved that on the relevant date i.e. 21.10.2005, deceased Dhannu @ Dhanesh Mishra was employed as Supervisor in the power plant of non-applicant No. 1/employer and was drawing a salary of Rs. 3500/-p.m. 14. 13. On the basis of evidence adduced by the parties, it stands proved that on the relevant date i.e. 21.10.2005, deceased Dhannu @ Dhanesh Mishra was employed as Supervisor in the power plant of non-applicant No. 1/employer and was drawing a salary of Rs. 3500/-p.m. 14. It is not in dispute that on the date of accident i.e. 21.10.2005, the deceased had completed his duties at 10 pm and after that when he was returning back to his house, which is situated at about 2 km from the power plant, that at about 11 pm his scooter was dashed by an unknown truck, which was coming from opposite direction, near Village-Anda, on account of which the deceased sustained grievous injuries and succumbed to the same. From the evidence adduced, it is clear that the deceased was allotted residential quarter by his employer i.e. non-applicant No. 1 and was also given a scooter for discharging his duties of Supervisor. 15. Anil Kumar (AW-2), who is a co-employee of the deceased and was accompanying him on the scooter on the date of accident, has also stated that when after completing their duty shift at 10 pm, they were returning back to the residence of the deceased, that an unknown truck coming from opposite direction had dashed the scooter driven by the deceased, on account of which, both of them had sustained injuries and the deceased succumbed to the same. The statement of Anil Kumar (AW-2) finds corroboration from the documents filed on behalf of the applicants/claimants. Therefore, from the evidence adduced, it stands proved that on 21.10.2005 when the deceased after finishing his work at 10 pm was returning to his residence along with Anil Kumar (PW-2) by the scooter allotted to the deceased by his employer (non-applicant No. 1), that the accident occurred, resulting in death of the deceased. 16. Now the question is - whether the death of Dhannu @ Dhanesh Mishra can be said to have arisen due to an accident in the course of his employment? 17. On this point, learned counsel for non-applicant No. 2/insurance company has cited aforesaid three judgments of the Hon'ble Supreme Court in the matters of Saurashtra Salt Manufacturing Co., Mallikarjuna G. Hiremath, and Shakuntala Chandrakant Shreshti. 18. In the case of Saurashtra Salt Manufacturing Co. 17. On this point, learned counsel for non-applicant No. 2/insurance company has cited aforesaid three judgments of the Hon'ble Supreme Court in the matters of Saurashtra Salt Manufacturing Co., Mallikarjuna G. Hiremath, and Shakuntala Chandrakant Shreshti. 18. In the case of Saurashtra Salt Manufacturing Co. (supra,), the Hon'ble Supreme Court has, in para-7, observed as under: (7) As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and re-passes in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension. 19. In the matter of Mallikarjuna G. Hiremath (supra), the Hon'ble Supreme Court has observed in paras 15 & 16 as under: 15. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. 16. In a case of this nature, to prove that accident has taken place, factors which would have to be established, inter alia, are: (1) stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain. In the aforesaid case, the deceased was driving the vehicle on the direction of the insured and had gone to temple. While he was sitting on the steps of the pond in temple, he slipped and fell into water and died due to drowning. In the aforesaid case, the deceased was driving the vehicle on the direction of the insured and had gone to temple. While he was sitting on the steps of the pond in temple, he slipped and fell into water and died due to drowning. In these circumstances, the Hon'ble Supreme Court considering the provisions of Section 3 of the Act held that the insurer or the insured is not liable to pay compensation. However, facts of the present case are substantially different from the facts of the above cited case and therefore, not applicable to the instant case. 20. In Shakuntala Chandrakant Shreshti (supra), death of the deceased was on account of heart attack due to stress and strain of work, therefore, it is distinguishable on facts from the present case and as such, not applicable. 21. In the instant case, the deceased was employed as Supervisor in the power plant of non-applicant No. 1/employer and was given a scooter and residential accommodation at a distance of 2 km from the power plant by his employer. The deceased used to go from his official residence on his official two-wheeler (scooter) to the power plant for discharging his duties. On the date of accident i.e. 21.10.2005, the deceased after finishing his duty shift at 10 pm was returning on the official scooter along with Anil Kumar (AW-2) to his residence, that the accident occurred resulting in his instantaneous death. Thus, looking to the totality of the facts, the accident resulting in death of the deceased shall be deemed to have arisen and it was during the course of his employment because, in view of the facts of this case, the deceased shall be deemed to be on duty till he reaches his residence. 22. So far fastening of liability upon non-applicant No. 2/insurance company is concerned, it is not in dispute that the policy (Ex. D/12) issued by non-applicant No. 2/insurance company in favour of non-applicant No. 1/employer is WC Policy General. There is no mention in the policy that the insurance company will be liable only when the death or permanent disablement has arisen due to accident at the place and in the course of employment. The insurance policy (Ex. D/12) issued by non-applicant No. 2/insurance company in favour of non-applicant No. 1/employer is WC Policy General. There is no mention in the policy that the insurance company will be liable only when the death or permanent disablement has arisen due to accident at the place and in the course of employment. The insurance policy (Ex. D/12) has to comply with the requirements of Section 3 of the Act, according to which the death or permanent disablement must have arisen on account of accident and in the course of employment. As such, as the deceased shall be deemed to be in employment till he reaches his place of residence, therefore, the accident, which occurred near Village-Anda at about 11 pm when the deceased was returning to his official residence on his official vehicle - scooter after finishing his duties, shall be deemed to have arisen during the course of employment. Thus, in our considered opinion, the Commissioner has not committed any illegality in fastening the liability upon non-applicant No. 2/insurance company on the basis of insurance policy (Ex. D/12) to pay compensation to the applicants/claimants. 23. So far as imposition of penalty on non-applicant No. 1/employer is concerned, from the material available on record, it appears that before imposing penalty on non-applicant No. 1/employer, no opportunity of show cause was afforded to the employer, as provided under proviso to clause (b) of sub-section (3) of Section 4A of the Act, which is mandatory in nature. Therefore, we are of the opinion that the learned Commissioner was not justified in imposing penalty on non-applicant No. 1/ employer. In the result: MA(c) No. 2/10 being without substance is hereby dismissed. The impugned award dated 24.7.2009 passed by the Commissioner, insofar as it relates to fastening of liability upon non-applicant No. 2/insurance company to pay compensation to the applicants/claimants is hereby affirmed. MA(c) No. 1253/09 is allowed in part. The impugned award dated 24.7.2009 passed by the Commissioner, so far as it relates to imposition of penalty upon non-applicant No. 1/employer is hereby set aside. The matter is remitted back to the Commissioner for passing order afresh with regard to imposition of penalty. But before passing such order, the mandatory provisions enshrined in proviso to clause (b) of sub-section (3) of Section 4A shall be strictly followed. The concerned parties shall appear before the Commissioner on 28th March, 2012. The matter is remitted back to the Commissioner for passing order afresh with regard to imposition of penalty. But before passing such order, the mandatory provisions enshrined in proviso to clause (b) of sub-section (3) of Section 4A shall be strictly followed. The concerned parties shall appear before the Commissioner on 28th March, 2012. LCR shall be sent back to the Commissioner without further delay. No order as to costs.