JUDGMENT 1. - This civil misc. appeal under Section 30 of the Employee's Compensation Act, 1923 (hereinafter 'the Act of 1923') has been filed against the order dated 23.03.2011, passed by the Commissioner, Workman's Compensation Act, Jaipur District-II (hereinafter 'the Commissioner'), wherein the claim petition filed by the respondents-claimants (hereinafter 'the claimants') was allowed to an extent of Rs. 3,94,120/- along with interest @ 12% p.a from the date of the accident in issue i.e. 11.05.2009 till the date of payment. 2. The facts of the case are that the claimants filed a claim petition under the Act of 1923 seeking compensation for the death of Bajrang Lal, husband of claimant No.1, father of claimant No.2 and son of claimant No.3. It was stated that the deceased Bajrang Lal was employed as "Khalasi" on bus No.RJ-28-PA-0072 which was insured with the appellant-Insurance Company (hereinafter 'the Insurance Company'). On 11.05.2009, when the deceased Bajrang Lal was on duty as "Khalasi" on the aforesaid vehicle, he went to the roof of the bus to bring down certain wooden pieces kept on the carrier thereof. Accidentally he touched overhead electric wires and died of the resultant severe electricity shock. The incident was entered into Rojanamcha of the concerned police station. It was stated that Bajrang Lal was 25 years old at the time of his death and was earning a sum of Rs. 6,500/- p.m. Compensation of Rs. 10 lakhs was thereupon claimed. 3. The owner of the insured vehicle as detailed hereinabove one Omprakash Tiwari with whom deceased Bajrang Lal was employed as per claim petition remained ex-parte in spite of service. The Insurance Company however filed a detailed written statement stating therein that the claim petition was not maintainable in view of the insured being in breach of the conditions of the policy under which the bus was insured inasmuch as the bus was being plied without a valid permit and further that the driver of the said bus did not have a valid driving licence. It was also stated that deceased Bajrang Lal was not in regular employment of the insured bus owner and therefore did not partake the character of his employee under the Act of 1923. It was also stated that deceased Bajrang Lal was not in regular employment of the insured bus owner and therefore did not partake the character of his employee under the Act of 1923. The further defence of the Insurance Company was that the deceased, as per the report obtained following the accident from its own private investigator, was at the time of the accident inebriated consequent to which the liability of the employer and by extension the insurer under the Act of 1923 was excluded. 4. On the basis of the pleadings of the parties, the learned Commissioner framed five issues. Broadly stated they pertained to the question as to whether deceased Bajrang Lal on the date of his death i.e. 11.05.2009 was engaged as "Khalasi" on the insured bus bearing No.RJ-28-PA-0072; whether the deceased was in the employment of the insured and died in the course of his employment carrying out the instructions given to him; what was the effect of the objections taken by the Insurance Company to the maintainability of the claim petition; whether the claimants were entitled for the compensation as claimed and if yes, to whom and how much; and finally the relief. 5. On consideration of the matter and the evidences of the respective parties led before it, the learned Commissioner vide his order dated 23.03.2011 awarded compensation to the claimants for a sum of Rs. 3,94,120/- along with interest @ 12% effective the date of accident i.e. 11.05.2009 till the date of payment. 6. The Insurance Company aggrieved of the aforesaid award passed by the Commissioner, has filed this appeal under Section 30 of the Act of 1923. 7. Mr. V.P. Mathur, appearing for the Insurance Company, has submitted that the deceased Bajrang Lal was at the time of his death in the accident of 11.05.2009 under the influence of alcohol and consequently liability of the employer and his insurer was excluded under Sub-clause (i) of clause (b) of proviso (1) to Section 3(1) of the Act of 1923. Counsel submits that the Insurance Company had appointed an investigator to enquire into the facts leading to the accident dated 11.05.2009 and in his report, on the basis of statement of the employer i.e. the insured to whom the bus belonged, the deceased Bajrang Lal was inebriated at the time of accident. Counsel submits that the Insurance Company had appointed an investigator to enquire into the facts leading to the accident dated 11.05.2009 and in his report, on the basis of statement of the employer i.e. the insured to whom the bus belonged, the deceased Bajrang Lal was inebriated at the time of accident. It is submitted that on this count, liability based on the accident of 11.05.2009 resulting in Bajrang Lal's death could not be fastened on the employer and the insurer. Counsel submits that aside of the aforesaid it was on record before the Commissioner that a sum of Rs. 65,000/- had been paid to the claimants by the employer following death of Bajrang Lal and the said amount ought to have been adjusted with the compensation determined by the Commissioner and payable to the claimants. Reliance has been placed on Exhibit NA-6 to point out that such payment had been made by the employer and it was submitted that the learned Commissioner erred in not adjusting the said amount. Counsel further submitted that the insured - employer remaining ex-parte in spite of service and had not established that the insured vehicle had a valid permit at the time of accident on 11.05.2009 or that the then driver of the said vehicle had a valid licence to drive it. He submitted that aforesaid breach of the conditions of policy by the insured ought to have entailed the exoneration of the insurer from any liability. It has been finally submitted that the interest awarded by the learned Commissioner @ 12% p.a. on the compensation found payable from the date of accident i.e. 11.05.2009 till the date of payment is contrary to the judgment of the Hon'ble Supreme Court in the case of UPSRTC now Uttarakhand Transport Corporation v. Satnam Singh [ 2012 ACJ 691 ] as also the judgment of this Court inter alia based on the aforesaid judgment passed in the case of Regional Manager v. Smt. Sito Devi & Ors., SBCMA No. 345/2001 decided on 09.07.2013 . Counsel has submitted that interest on the amount of compensation found due should have been from the date of award. 8. Per contra, Mr. Counsel has submitted that interest on the amount of compensation found due should have been from the date of award. 8. Per contra, Mr. Sandeep Mathur, appearing for the claimants, has submitted that it was the burden of the Insurance Company to establish from the positive evidence that the insured bus at the time of accident did not have a valid permit or the driver thereof did not have a valid driving licence. He submits that mere speculative assertion was no substitute to the positive evidence essential to discharge the burden on the Insurance Company which had asserted the two lacunae to escape its liability under the insurance policy for the bus in issue. Counsel has submitted that the Insurance Company should have obtained the requisite evidence from the regional transport office to establish its case on the aforesaid two counts and having failed to do so, it has to be to its own failure and detriment and not to the prejudice of the claimants. Counsel has further submitted that the submissions made based on the deceased Bajrang Lal being inebriated at the time of accident on 11.05.2009 are of little avail on more than one account. It was submitted that for one the entire case of the Insurance Company was based on the self-serving report of its own private investigator based on the alleged say of the insured - employer of deceased Bajrang Lal. That evidence would in any event be excluded on the rule against hearsay evidence. And if the Insurance Company desired legal evidence it was for it to bring the insured in the witness box and make the said assertion in support of its defence. He submitted that there was nothing on record in the evidence of the witnesses of the Insurance Company who entered the witness box before the Commissioner to establish to the requisite level of legal proof that the deceased Bajrang Lal was inebriated at the time of accident. Reliance has been made to Clause (b) of proviso to Section 3(1) of the Act of 1923 to contend that in any event in cases of death or permanent total disablement of an employee even if the deceased employee was under the influence of drink or drugs, it would be of no avail or allow the employer to escape the broadly stated liability under clause 3(1) of the Act of 1923. Counsel then submitted that the payment of Rs. 65,000/-made by the insured to the claimants when the death had occurred was in the nature of ex-gratia payment and there was no occasion whatsoever for adjusting the said amount with the compensation found payable by the Commissioner. It has been submitted that the age of the deceased at the time of accident was 35 years, the employment of the deceased with insured being owner was proved from evidence on record and the learned Commissioner had taken the minimum of salaries in the year 2009 at Rs. 4,000/- p.m. and consequently nothing excessive can be attributed to the compensation determined by the Commissioner. Counsel finally drew the attention of this Court to the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Lts. v. Siby George & Ors., [MACE 2012 (SC) 129] wherein the Hon'ble Supreme Court has held that the expression "fell due" in Section 4A(3) of the Act of 1923 had been earlier construed by a Larger Bench decision of the Hon'ble Supreme Court as the date of accident i.e. in the case of Pratap Narain Singh Deo v. Shrinivas Sabata & Anr. [ AIR 1976 SC 222 ] , Kerala State Electricity Board v. Valsala K [ AIR 1999 SC 3502 ] . The Hon'ble Supreme Court in the case of Pratap Narain Singh Deo (Supra) noted that in the cases of National Insurance Co. Ltd. v. Mubasir Ahmed & Anr., [ (2007) 2 SCC 349 ] and Oriental Insurance Company Ltd. v. Mohd. Nasir & Anr., [ (2009) 6 SCC 280 ] , earlier decisions by Larger Benches of 4 and 3 judges respectively were not taken into consideration and thus the enunciation therein making interest payable from the date of determination of compensation by the Commissioner was not good law. 9. I have heard the counsel for the Insurance Company and the claimants. 10. In my considered opinion, the defence of the Insurance Company in the deceased Bajrang Lal being inebriated at the time of the accident of 11.05.2009 leading his death from electrocution was not established as required in law. For one, the entire defence set up on the ground of the deceased being inebriated was based on a purported statement of the employer of deceased Bajrang Lal (the insured of vehicle No.RJ-28-PA-0072) to the investigator of the Insurance Company. For one, the entire defence set up on the ground of the deceased being inebriated was based on a purported statement of the employer of deceased Bajrang Lal (the insured of vehicle No.RJ-28-PA-0072) to the investigator of the Insurance Company. That partakes on the face of it, the character of hearsay evidence. Further, the employer of deceased Bajrang Lal did not enter the witness box to make a statement that the deceased Bajrang Lal at the time of accident on 11.05.2009 was inebriated. The insurer if sought to rely on his purported say should have got him as its witness in the box. Even otherwise the evidence of witness NAW-2, the private investigator appointed by the Insurance Company, does not indicate a specific assertion in regard to the deceased being drunk. Further in any event in terms of proviso to Section 3(1) of the Act of 1923 where death or injury has been occasioned to an employee while in the course of employment, the factum of the employee at the relevant time being under the influence of drink or drugs is of no relevance. Further in my considered opinion, payment of Rs. 65,000/- made by the insured to the claimants does not entitle the Insurance Company to an adjustment of the said amount in the compensation found payable to the claimants by the Commissioner. No statutory provision or decided case has been cited by the counsel for the Insurance Company in support of this contention. The defence of the Insurance Company seeking to escape liability on account of the insured allegedly not having a valid permit for the running of the insured bus or the driver thereof not having a valid licence is of no avail as no positive evidence with regard thereto to buttress its assertion thereabout was laid by the Insurance Company. It was for the Insurance Company to obtain the requisite evidence from the concerned regional transport office, produce it before the Commissioner and establish its defence. Speculative assertion could not have been a substitute thereto. Further in view of the judgment of the Hon'ble Supreme Court in the case of Siby George (Supra), there can be no dispute that the dominant and presently obtaining legal position is that the interest on the amount of compensation determined by the Commissioner would be effective the date of accident and not the date of determination of compensation. Further in view of the judgment of the Hon'ble Supreme Court in the case of Siby George (Supra), there can be no dispute that the dominant and presently obtaining legal position is that the interest on the amount of compensation determined by the Commissioner would be effective the date of accident and not the date of determination of compensation. It would also be relevant to add that if a contrary view were to be taken, the claimants would be put to grave prejudice in respect of compensation under the Act of 1923 for the simple reason that they do not determine the Calender of the Commissioner in finally adjudicating their claims. 11. For the aforesaid reasons, I find no force in the appeal and the same is liable to be dismissed. 12. Dismissed accordingly.Appeal dismissed. *******