Hon'ble BHANSALI, J.—This appeal under Section 30 of the Workmen's Compensation Act, 1923 (now renamed Employee's Compensation Act, 1923) ('the Act') has been preferred by the appellant Insurance Company aggrieved by order dated 21.01.1999 passed by the Workmen's Compensation Commissioner, Jodhpur ('the Commissioner), whereby, the Commissioner awarded compensation to the extent of Rs.89,084/- with interest @ 6% from 06.01.1995 to the date of deposit and the appellant Insurance Company is held liable for payment of the said compensation. 2. The facts of the case are that claimants V.K. Gopala Krishna Pillai and Smt. Thulast G Pillai, parents of G. Babu filed an application for compensation before the Commissioner, inter alia, with the averments that their son G. Babu, a workman, employed by respondent M/s Ray Constructions suffered personal injuries by accident arising out of and in the course of his employment, due to which, he expired on 06.03.1994. The deceased was aged 21 years and 10 months and his monthly wages was Rs.1200/-. A claim of Rs.1,06,900/- with interest and penalty was made. 3. The application was replied by the appellant Insurance Company with the averments that though it was correct that workman G. Babu met with an accident, but the same did not happen during the course of employment or out of employment and, therefore, under the provisions of the Act no compensation was payable. It was stated that workman G. Babu was going to the hospital on a motor cycle and, when the said accident happened, he was neither working out of employment or during the course of employment; he was going to the hospital for his checkup and the accident occurred at 09:15 PM by then he was not on duty; three persons were riding on the motor cycle, which is against the provisions of law. It was further stated that the employer had got insured only few supervisors and not all supervisors and at the time of survey 11 site supervisors were appointed and there was insurance of only 2 supervisors and, therefore, the said insurance coverage was against the provisions of tariff. 4. It was further stated that the employer had got insured only few supervisors and not all supervisors and at the time of survey 11 site supervisors were appointed and there was insurance of only 2 supervisors and, therefore, the said insurance coverage was against the provisions of tariff. 4. The application was also replied by the respondent Nos.1 and 2, the employer, who admitted the averments made in the application and that the deceased received injuries in an accident when he was on duty i.e. in the course of his employment; it was prayed that the liability for payment is of the Insurance Company. 5. The Commissioner framed six issues and came to the conclusion that deceased G. Babu was working as Supervisor with M/s Ray Constructions since 09.06.1993 and the accident occurred during the course of employment. The age of the deceased was 21 years and he was receiving Rs.1200/- as salary and the Insurance Company had undertaken to indemnify the employer qua payment of compensation under the provisions of the Act and ultimately passed the award as stated above. 6. It was contended on behalf of the appellant Insurance Company that injury was not caused to the workman by accident arising out of and in the course of employment and, therefore, the claim was not maintainable and, consequently, the Insurance Company was not liable to make the payment. It was submitted that deceased G. Babu was returning back from the place of work on a motor cycle and met with accident 2 kilometers off the site, where he was working. It was also submitted that his duty hours were over by 07:00 PM and the accident occurred at about 09:00 PM, therefore, it cannot be said that he was injured during the course of his employment. 7. The counsel for the appellant Insurance Company relied on the judgment of Hon'ble Supreme Court in Regional Director, E.S.I. Corporation & Anr. vs. Francis De Costa & Anr. : AIR 1997 SC 432 and Shakuntala Chandrakant Shreshtri vs. Prabhakar Maruti Garvali & Anr. : 2006 AIR SCW 609, judgment of Jharkhand High Court in Steel Authority of India Ltd. vs. Bibi Jan Bibi & Anr. : 2007 ACC 836 on the issue. 8. vs. Francis De Costa & Anr. : AIR 1997 SC 432 and Shakuntala Chandrakant Shreshtri vs. Prabhakar Maruti Garvali & Anr. : 2006 AIR SCW 609, judgment of Jharkhand High Court in Steel Authority of India Ltd. vs. Bibi Jan Bibi & Anr. : 2007 ACC 836 on the issue. 8. It was further contended that deceased was admittedly working as a Supervisor and was therefore not a workman and, thus, the application for compensation was not maintainable under the Act before the Commissioner. Reliance in this regard was placed on National Insurance Co. Ltd. vs. Mumtaz & Ors. : 2007 ACJ 974 . It was prayed that the award impugned be set aside. 9. Replying to the above submissions, learned counsel for the respondents stated that the workman was allotted a residential accommodation 4 kilometers off the site and it has come on record that after waiting for the official conveyance for some time, he left for the residential accommodation on a motor cycle and met with the accident on way to the residential accommodation provided by the employer and, therefore, applying the theory of notional extension, it can certainly be held that the accident arose out of and in the course of the employment of the deceased. 10. Reliance was placed on judgment of Hon'ble Supreme Court in General Manager, B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes. : AIR 1964 SC 193 and judgment of Chhatisgarh High Court in Shri-Man Branch Manger, Oriental Insurance Co. Ltd. vs. Visheshwar Mishra & Ors. : 2012 AAC 1061 (CHH). On the issue of maintainability of the claim on account of the deceased being a Supervisor, it was submitted that the Workmen's Compensation Policy Exhibit-A/1 clearly covered the case of a Supervisor and, therefore, it was not open for the Insurance Company to question the award on the said issue. It was prayed that appeal be dismissed. 11. I have considered the rival submissions made at the Bar and perused the record of the case. 12. The principal issue which arises for consideration in this appeal is whether in the facts and circumstances of the case, it can be said that deceased G. Babu died on account of the personal injuries, which were caused to him by accident 'arising out of and in the course of his employment'. 13. 12. The principal issue which arises for consideration in this appeal is whether in the facts and circumstances of the case, it can be said that deceased G. Babu died on account of the personal injuries, which were caused to him by accident 'arising out of and in the course of his employment'. 13. Section 3 of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter-II. Further, in terms of the Insurance Policy, if the liability of the employer arises under the Act, then the Insurance Company is liable to indemnify the employer regarding the amount of compensation paid/to be paid by it. 14. In the present case, in the application for compensation filed before the Commissioner only one line averment was made that the deceased received personal injury by accident arising out of and in the course of his employment. No averments were made to elaborate the said averment by giving out the facts as to how it could be said that the accident arose out of and in the course of employment. 15. The Insurance Company denied the said averments and a specific plea was raised in the additional pleas that the accident did not arise out of and in the course of the employment and, when the accident occurred, the deceased was already off his duty. 16. The facts on the issue can only be deciphered from the statement of one Vargis Yohannan who was also working as supervisor with the employer and was on the motor cycle with deceased when he met with the accident, examined as a witness on behalf of the claimants. He, inter alia, stated that “G. Babu met with an accident on 6.3.1994 while returning from place of work to his quarter provided by the Company. Accident occurred on Salawas Road. G. Babu was driving the motor cycle.” In the cross-examination he further stated that “our residential quarters provided by the Company are situated in Shastri Nagar, Jodhpur. The motor cycle, which was driven by G. Babu was of colleague whose name I don't know. Accident place was 2 km. away. My duty was off 7:00 PM also of G. Babu. G. Babu was driving the motor cycle.” In the cross-examination he further stated that “our residential quarters provided by the Company are situated in Shastri Nagar, Jodhpur. The motor cycle, which was driven by G. Babu was of colleague whose name I don't know. Accident place was 2 km. away. My duty was off 7:00 PM also of G. Babu. Accident occurred between 9 to 9:30 PM, we were waiting for company vehicle, but it did not come and was sitting on back side of motor vehicle. My duty hours are 08:00 AM to 06:00 PM, if there is work we also stay after duty hours.” 17. From the above statement of Vargis Yohannan, it is clear that the accident occurred between 9 to 9:30 PM when deceased G. Babu alongwith the said witness and one more person were riding a motor cycle on their way back from the site to the residential quarter provided by the employer at Shastri Nagar, Jodhpur; the motor cycle was not owned by the employer; the deceased was supposed to travel back to his residence by a company vehicle, however, as the said vehicle did not turn up, he travelled by the said motor cycle. 18. The law on the issue 'whether the accident has arisen out of and in the course of employment' has been laid down elaborately by Hon'ble Supreme Court in the case of Francis De Costa (supra). The facts of the said case, which arose out of provisions of Employees' State Insurance Act were quite similar except that in the said case, the employee was going to the work place and, in the present case, the employee was leaving the work place. In the said case, the employee met with an accident while he was on his way to his place of employment and the accident occurred at a place which was one kilometer away to the north of the factory. The time of occurrence was 04:15 PM and the duty shift would have commenced at 04:30 PM and the workman was going to his place of work on bicycle when he was hit by a lorry. The Hon'ble Supreme Court held in para 27 thus:- “27. The time of occurrence was 04:15 PM and the duty shift would have commenced at 04:30 PM and the workman was going to his place of work on bicycle when he was hit by a lorry. The Hon'ble Supreme Court held in para 27 thus:- “27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.” 19. In the case of Shakuntala Chandrakant Shreshtri (supra), the Hon'ble Supreme Court in the given facts came to the conclusion that death of the employee did not occur in the course of his employment. The said judgment is not of much relevance in the present case. 20. In the case of Steel Authority of India Ltd. (supra) the Jharkhand High Court, in a case where the employee after completing his shift duty while going to his residence on Scooter fell down from Scooter, sustained injuries and died, held that the death of the workman did not take place in the course of employment and the claim made was not covered under the Act. 21. The judgment cited by counsel for the respondents in the case of General Manager, B.E.S.T. Undertaking (supra) was elaborately considered by the Hon'ble Supreme Court in the case of Francis De Costa (supra) and the said judgment of General Manager, B.E.S.T. Undertaking was distinguished thus:- “15. Strong reliance was placed by Shri Chacko on a decision of this Court in General Manager, B.E.S.T. Undertaking, Bombay vs. Mrs. Agens, (1964) 3 SCR 930 : ( AIR 1964 SC 193 ). In this case, one bus driver of the appellant-Corporation after finishing the day's work left for home in a bus belonging to employer's Undertaking which met with an accident as a result of which he died. His widow claimed compensation under the Workmen's Compensation Act and the question was whether the accident had arisen out of and in course of employment. It was held by Subba Rao and Mudholkar, JJ. (Reghubar Dayal, J. dissenting) that the bus driver was given facility by the management to travel in any bus belonging to the Undertaking. It was given because efficiency of the service demanded it. It was held by Subba Rao and Mudholkar, JJ. (Reghubar Dayal, J. dissenting) that the bus driver was given facility by the management to travel in any bus belonging to the Undertaking. It was given because efficiency of the service demanded it. Therefore, the right of the bus driver to travel in the bus was to discharge his duty punctually and efficiently. This was a condition of service and there was an obligation to travel in the said buses as a part of his duty. It was held that in the case of a factory, the premises of an employer was a limited one but in the case of a City Transport Service, the entire fleet of buses forming the service would be “premises”. This decision in our view, does not come to the assistance of the employee's case. An employee of a transport undertaking was travelling in a vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the Court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked. 16. But in the case before us, the facts are entirely different. The employee was not obliged to travel in any particular way under the terms of employment nor can it be said that he was travelling in a transport provided by the employer.” 22. In the case of Shri-Man Branch Manager (supra), the deceased was given Scooter and residential accommodation by the employer and the accident occurred while deceased after finishing his duty was returning on official Scooter to his residence and, therefore, in those circumstances, it was held that accident resulting in death of deceased shall be deemed to have arisen out of and during the course of his employment. 23. 23. The facts of this case as discussed hereinbefore, are not in dispute, inasmuch as, the statement of Vargis Yohannan, who was produced by the claimants is the foundation of the entire claim, who has given out the facts regarding the duty hours of deceased G. Babu; he was travelling on a borrowed motor cycle back to his residence provi-ded by the employer, which residence was about 4 kilometers off the actual site; the accident occurred 2 kilometers away from work site and almost 2½ hours after G. Babu was off his duty, therefore, in view of the law laid down by the Hon'ble Supreme Court in the case of Regional Director, E.S.I. Corporation vs. Francis De Costa (supra), it cannot be said that the injury suffered by the workman G. Babu, which resulted in his death 2 kilometers away from the work site, while he was on his way back to his residence was caused by an accident arising out of and in the course of his employment and, therefore, the application for compensation before the Commissioner was not maintainable. 24. The judgments relied on by counsel for the respondents are apparently distinguishable as the case of General Manager B.E.S.T. Undertaking (supra) already stands distinguished by the Hon'ble Supreme Court in the case of Francis De Costa (supra) and in the case of Shri-Man Branch Manager (supra) the workman was travelling on a official Scooter provided by the company. 25. This Court in Regional Manager, Punjab National Bank & Anr. vs. Smt. Paramjeet Kaur : 2009(4) RLW 2987 (Raj.) has also negated the application of theory of notional extension, whereby, a Bank Manager died while on his way to join duty. 26. The second issue regarding maintainability of the claim of a Supervisor before the Commissioner, in view of the findings recorded hereinbefore does not need any decision by this Court. 27. In view of the above discussion, the order impugned passed by the the Workmen's Compensation Commissioner, cannot be sustained and the same is, therefore, set aside and the application for compensation is dismissed as not maintainable. 28. However, it is noticed that though this Court vide order dated 01.04.1999 stayed disbursement of the amount deposited by the Insurance Company to the respondents, the said stay order was vacated on 18.10.2002. 28. However, it is noticed that though this Court vide order dated 01.04.1999 stayed disbursement of the amount deposited by the Insurance Company to the respondents, the said stay order was vacated on 18.10.2002. If on account of vacation of stay order, the amount of compensation has been paid to the parents of deceased G. Babu, in the facts and circumstances of the case, the same shall not be recovered back from them, as it would be really harsh on them, in case they are required to refund the said amount. However, if the said amount has not been paid to the said claimants i.e. Parents of deceased G. Babu, the same would not be required to be paid. 29. In the result, the appeal is allowed in above terms and directions. No costs.