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 19.08.1998, passed by the Employee's Compensation Commissioner, Dausa (hereinafter 'the Commissioner') whereby he has allowed the claim petition filed by the respondents-claimants and awarded an amount of Rs. 1,71,370/- plus interest @ 12% p.a. from the date of accident i.e. 29.10.1997 till the date of payment. It was further directed that in the event of non-payment of the amount awarded as compensation within a period of one month, it would carry interest @ 18% p.a. instead of 12% p.a. Cost of Rs. 3,000/- has also been allowed to the respondent-claimants. 2. The facts of the case are that a claim petition came to be filed by the respondents-claimants Nos.1 to 3 as the parents and wife of one Radheshyam @Rajesh @Raju under Section 22 of the Act of 1923. It was stated that Radheshyam @Rajesh @Raju was employed with defendant No.1M/s. Oswal Machinery Store, outside Manganj, Dausa, on the salary of Rs. 2,200/- p.m. The case set up was that the aforesaid employee was working as a cleaner on the JCB maintained by the employer M/s. Oswal Machinery Store. On 29.10.1997 while working on the JCB, Radheshyam @ Rajesh @ Raju was stated to have been injured owing to an accident and died in consequence thereof from the injuries suffered. The deceased was stated to be 22 years of age at the time of accident and his death. It was submitted that aside of the lodging of a FIR bearing No.578/1997 registered at Police Station Kotwali, Dausa for offences under Sections 279, 304-A IPC arising out of the accident detailed here-in-above, notices were also sent to the employer M/s. Oswal Machinery Store, claiming compensation under the Act of 1923. Compensation was not paid and therefore the claim petition was laid before the jurisdictional Commissioner. The appellant-Insurance Company i.e. The New India Assurance Co. Ltd., was arrayed as defendant No.2 in the application for compensation on the ground that the offending JCB was insured under cover note No.031629 for the period 2nd June, 1997 to 1st June, 1998. It was prayed that a sum of Rs. The appellant-Insurance Company i.e. The New India Assurance Co. Ltd., was arrayed as defendant No.2 in the application for compensation on the ground that the offending JCB was insured under cover note No.031629 for the period 2nd June, 1997 to 1st June, 1998. It was prayed that a sum of Rs. 2,43,507/- along with interest @ 18% p.a. from the date of the accident till the date of payment as also penalty @ 50% of the compensation found payable be awarded to the claimants. 3. The employer M/s. Oswal Machinery Store, in its reply to the claim petition, admitted to the factum of employment of Radheshyam @Rajesh @Raju on its JCB and his death following injuries occasioned by an accident with the JCB on 29.10.1997. It was stated that the deceased Radheshyam @Rajesh @Raju was indeed at the relevant time working as a cleaner on the JCB on wages of Rs. 2,200/- p.m. The age of the deceased Radheshyam @Rajesh @Raju at the time of accident on 29.10.1997 when he died was denied for want of knowledge. It was stated that the notices demanding compensation have been received from the claimants and had been forwarded to the Insurance Company with which the offending JCB was insured. It was stated that the Insurance Company was liable to pay the compensation to which Radheshyam @Rajesh @Raju was entitled following his death in the accident of 29.10.1997 while working as cleaner on the JCB. 4. The defendant No.2-Insurance Company on its part filed a reply opposing the claim petition vis-a-vis the claimants' assertion that it was liable to pay compensation for the death of Radheshyam @Rajesh @Raju while working as cleaner on the JCB. It was submitted that the liability of the Insurance Company to pay compensation to the deceased in respect of the insurance cover of the JCB could not be made out in law in view of the fact that the insurance cover for the period 2nd June, 1997 to 1st June, 1998 related only to plant and machinery of the insured and did not include coverage of any third party claim in respect of which no premium had been charged. 5. 5. On the basis of pleadings of the parties, the Commissioner framed the following issued, which read as under : ( 1 ) vk;k e'rd jk/ks';ke mQZ jkts'k mQZ jktw fnukWad 29-10-1997 dks vizkFkhZ uEcj 1 ds fu;kstu esa Fkk\ o fu;kstu ds nkSjku og nq?kZVukxzLr gqvk ftlls mldh e'R;q gks x;hA ( 2 ) vk;k izkFkhZx.k eqvkotk jkf'k izkIr djus ds vf/kdkjh gS\ vxj gS rks fdruh\ o fdl&fdl ls\ (2-a) vk;k chek dEiuh }kjk izkjfEHkd vkifRr;ksa ds vk/kkj ij eqvkotk jkf'k izkfFkZx.k dks nsus ds fy;s mRrjnk;h ugha gS\ (2-b) vk;k vizkFkhZ chek dEiuh dks izkFkhZx.k dh vksj ls muds odhy }kjk fnyok;k x;k uksfVl izkIr ugha gqvk\ (2-c) vk;k chek dEiuh }kjk okgu dk chek fd;k x;k Fkk] e'rd dk chek ugha fd;k x;k\ (2-d) vk;k nq?kZVuk futh LFkku izkbZosV Iysl ij gqbZ gS] ftl dkj.k Hkh chek dEiuh dk dksbZ mRrjnkf;Ro mRiUu ugha gksrk\ (3) vuqrks"k\ 6. Vide order dated 19.08.1998, the learned Commissioner negated the defence of the Insurance Company and found it jointly liable along with employer for payment of the compensation and interest thereon as detailed here-in-above. Hence this civil misc. appeal. 7. Counsel for the appellant-Insurance Company has submitted that the offending JCB was covered under its "Contractor's Plant and Machinery Insurance Policy". The scope of the cover was in the nature of a comprehensive policy to the client (insured) against unforeseen and sudden physical damage to plant and machinery by any cause not specifically excluded. The policy applied to the insured items whether they were at work or at rest or being dismantled for the purpose of cleaning or overhauling or in the course of plant operations themselves or were being shifted within the premises or during subsequent re-erection, but in any case only after successful commissioning. Exclusions under the said policy inter alia included loss or damage to the vehicles designed and licensed for general road use unless those vehicles were exclusively used on construction sites. The sum assured on the policy was equal to cost of replacement of the insured property by new property of the same kind and same capacity which included replacement cost as also freight and customs duties, if any and erection costs. The sum assured on the policy was equal to cost of replacement of the insured property by new property of the same kind and same capacity which included replacement cost as also freight and customs duties, if any and erection costs. It was submitted that the proposal for machinery insurance submitted by the insured M/s. Oswal Machinery Store made it clear that no premium was charged or paid in respect of any third party liability. The proposal form as submitted by the insured to the insurer was placed before the Commissioner as Ex-NA-2/2. It was submitted that the said document was not only exhibited but also admitted by the insured in its reply to the claim petition. Yet the Commissioner overlooked the said document on the specious reasoning that it was merely a photocopy. It has been submitted that in the circumstances obtaining, the appellant-Insurance Company was not liable either in the contract or under any statute no such statutorily liability was propounded for the death of Radheshyam @ Rajesh @ Raju. On this count, submitted the appellant's counsel, the impugned order dated 19.08.1998 was liable to be quashed aside. 8. None has appeared for the respondents in spite of service of notice. 9. Heard. Considered. 10. In my considered opinion, in terms of the conditions of the appellant-Insurance Company's "Contractor's Plant and Machinery Insurance Policy" (Ex-NA-2/4), which was part of the proposal for machinery insurance submitted by the employer M/s. Oswal Machinery Store, no contractual liability can be made out for coverage of any third party liability in respect of the insured machinery. The proposal for machinery insurance submitted with the insurance policy was not only admitted by insured in its reply to the claim petition, but also exhibited before the Commissioner as NA-2/2. No objection was laid to the exhibiting of proposal for machinery insurance by the insured. In this view of the matter, the Commissioner appears to have exceeded his jurisdiction and acted contrary to law in overlooking the specific terms and conditions of the proposal for machinery insurance wherein third party liability was excluded and no premium was charged or paid in respect thereof. The liability of the appellant-Insurance Company under the Act of 1923 is only a contractual liability not a statutory liability. The liability of the appellant-Insurance Company under the Act of 1923 is only a contractual liability not a statutory liability. No contract thus was subsisting in terms of the proposal for machinery insurance under which the appellant-Insurance Company could be held responsible for third party liability. In my considered opinion, the Commissioner has committed a gross legal error in holding the appellant-Insurance Company liable to pay compensation for the death of Radheshyam @ Rajesh @ Raju in the accident of 29.10.1997 while working as cleaner on the JCB even though the said machine was indeed insured with the appellant-Insurance Company. The said insurance however was limited to the machinery itself and damages sustained to it in any of the circumstances detailed in the "Contractor's Plant & Machinery Insurance Policy". It is nobody's case that the appellant-Insurance Company has any statutory liability in respect of the death of a workman working with an employer. 11. Consequently, I would allow this appeal and quash and set aside the order dated 19.08.1998, passed by the Commissioner qua the appellant-Insurance Company. This Court is informed that the amount of the compensation had been deposited and has since been disbursed to the appellants-claimants. In the facts obtaining, the appellant-Insurance Company would be entitled to take proceedings for recovery of the said amount.The civil miscellaneous appeal is accordingly allowed.Appeal allowed. *******