JUDGMENT & ORDER : Heard Mr. N. Deka, learned counsel for the appellant/opposite party and also heard Mr. B. Bora, learned counsel for the respondents/claimants. 1. This is an appeal under section 30 of Workmen Compensation Act, 1923 directed against the judgment and order dated 03.03.2009 passed by the Assistant Labour Commissioner and Commissioner of Workmen’s Compensation Act, Golaghat in W.C Case No. 35/2007. 2. The facts and circumstances which led to the filing of this appeal briefly stated are as follows:- That on 23.08.2006 one Late Ajay Bhumij, husband of respondent No.1 and son of respondent No.2 who was working as a permanent Cook of Manager of Hathikuli Tea Estate, Kaziranga National Park was on duty in the bungalow of the Manager. And while he was attending to his duty, he came out of the bungalow to the compound for some work at about 1:00 P.M. At that time a tree fell down and unfortunately hit him on his head which caused serious injuries. He was immediately rushed to the K.K. Civil Hospital at Golaghat and given treatment. But, unfortunately, he succumbed to his injuries on the next day i.e. 24.08.2006. A Police case being G.D.E. No. 396, dated 23.08.2006 was registered by Kohora Out-Post and post-mortem over his death body was conducted. Thereafter, the respondent No.1 wife of the deceased filed an application before the Assistant Commissioner and Commissioner of Workmen’s Compensation, Golaghat on 22.08.2008 praying for compensation of Rs. 4,39,900/- on the following grounds:- That her husband was employee of Hathikuli Tea Estate and he died when he was only 23 years old during the course of his employment, as such, she was entitled to compensation under Workmen’s Compensation Act, 1923. The respondent/petitioner stated also that her husband was survived by five dependants i.e. herself and her son Pradip Bhumij, two daughter namely, Ms. Sinami Bhumij and Ms. Rita Bhumij @ Reena and her mother-in-law Smti. Asthami Bhumij (respondent/applicant No.2). The respondent further stated that her deceased husband was earning a sum of Rs. 4,000/- P.M. which is inclusive of all other allowances like ration, quarters, medical, electricity, firewood etc. which were as per Tea Estate Garden Rule of the appellant/opposite party. 3. Sinami Bhumij and Ms. Rita Bhumij @ Reena and her mother-in-law Smti. Asthami Bhumij (respondent/applicant No.2). The respondent further stated that her deceased husband was earning a sum of Rs. 4,000/- P.M. which is inclusive of all other allowances like ration, quarters, medical, electricity, firewood etc. which were as per Tea Estate Garden Rule of the appellant/opposite party. 3. After sometime, the respondent No.2 (mother of the respondent No.1) also prayed for her impleadment in the application for compensation stating that she being the mother of the deceased employee, she is also entitled to the compensation as claimed by the respondent No.1. The appellant/opposite party filed a written statement, admitting that the deceased was an employees of the Tea Estate but denied that he died in the course of his employment. It was stated that he died due to unforeseen and unfortunate accident or due to act of God, therefore, the Tea Estate was not responsible for his death and not liable to pay compensation. It was also stated that the deceased was not 23 years old but was 28 years, 3 months, 21 days as per his service record. It was also denied that the petitioner’s pay was Rs. 4,000/- P.M. but stated that he was earning only Rs. 51.10/- per day along with other facilities/allowances as per the Tea Estate Garden Rule which added together will amount to only Rs.2,147.90/- The learned Commissioner after hearing the parties framed five issues for settlement of the dispute. The issues are as follows;- (i) Whether the claim petition is maintainable under the provision of Workmen’s Compensation Act, (ii) Whether claim petition is bar by law of limitation, (iii) Whether the deceased Ajay Bhumij was workman, if so whether, he died as a result of injuries in the accident arising out in the course of his employment, (iv) Whether claim are entitled to get compensation if so what is the quantum and from whom, (v) Any other reliefs. 4. The respondents/claimants filed one affidavit each in support of their claim and also exhibited certified copy of G.D.E No. 396, dated 23.08.2006 of Kohora Out Post, as Ext. 1, and also filed and exhibited the photo copy of the post-mortem examination report of the deceased. Both, the respondents were cross-examined by the learned counsel of the appellant/opposite party. 4. The respondents/claimants filed one affidavit each in support of their claim and also exhibited certified copy of G.D.E No. 396, dated 23.08.2006 of Kohora Out Post, as Ext. 1, and also filed and exhibited the photo copy of the post-mortem examination report of the deceased. Both, the respondents were cross-examined by the learned counsel of the appellant/opposite party. On the side of the appellant, only one witness Shri. Jagdip Singh, Manager of Hathikuli Tea Estate Garden was examined as D.W. 1, and he exhibited nomination form of the deceased as Ext. A, and on the same exhibit, exhibited the age of the deceased as Ext. A(1). He was cross-examined by the learned counsel for the respondent/appellant. 5. After hearing the learned counsels representing the parties and examining the evidence available, and also taking into consideration the relevant laws, the learned Commissioner, Workmen’s Compensation Act came to the conclusions as given herein below;- That the petition was filed within time and since appellant/opposite party did not press on the Issue No. 1 and Issue No. 2 he will straight away take up the other issues; Decision on Issue No.3. (i) The learned Commissioner examined the evidence given by the respondent No.1 and the respondent No.2, including their statement given in the cross-examination, and also examined the deposition of the only D.W Shri Jagdip Singh, and came to the conclusion that the deceased workmen died on 24.08.2006 due to injuries sustained by him on 23.08.2006 in the premise of the employer, as such, the accident occurred while the deceased was on duty in the place of his employment. Therefore, the workmen died during the course of his employment. While considering the issues, the learned Commissioner also referred to the case cited by the learned counsel for the respondents/claimants i.e. General Manager, B.E.S.T undertaking Bombay Versus- Ms. Ajnes, reported in AIR 1964 (56) wherein, the Hon’ble Supreme Court had held that;- “ when a bus driver was going from the depot after duty to his house and vice-versa, the aforesaid coming and going should be treated as a part of the employment and when such a driver met with an accident while going home from the depot it should be held that the accident occurred during the course of his employment”. (ii) The learned Commissioner also considered the objection raised by the appellant/respondent based on the ground that the respondents/claimants No.1 had been given employment, therefore, she is no longer entitled to the compensation under Tea Estate Garden Rule. In this regard, the learned Commissioner relying on the decision of the Hon’ble Bombay High Court passed in State of Maharashtra versus Arti & Anrs., reported in 2008 (1) T.A.C 289 (Bombay) came to the conclusion that such compassionate appointment will not come in the way of granting compensation under the Act. The relevant portion of the judgment of the Hon’ble Bombay High Court quoted in the judgment of the Commissioner is given herein below:- “Workmen’s Compensation Act, 1923- Compensation-compassionate appointment-widow of deceased given employment as a junior clerk on compassionate ground does not constitute a bar to make a claim under Workmen’s Compensation Act (para-16)”. (iii) Thereafter, the learned Commissioner went on to consider another point of objection raised by the appellant/respondent i.e., the falling of a branch of a tree on the deceased was not an accident, it was an act of God, therefore, the opposite party is not liable to pay compensation. The learned Commissioner also took note of the argument of the learned counsel for the respondents/claimants that the incident does not come under the purview of act of God and also took into consideration the case cited by the learned counsel in support of his argument. The case cited by the learned counsel was the case of “Divisional Controller K.S.R.T.C –versus- Mahadevi Shetyy & Ors.”, reported in 2003 (3) T.A.C 284 (Supreme Court). In that case, the Hon’ble Supreme Court had held; that the expression “Act of God” signifies the operation of natural forces free from human intervention, such as lightening, storms etc. The Court also stated that it may include such unexpected occurrence of nature such as, severe gale, snow, storms, hurricanes, cyclones, tidal wave and the like. But every unexpected wind and storm does not operate as an excuse from liability. Act of God does not provide excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence. After considering the submissions of both the learned counsels the learned Commissioner came to the conclusion that the incident in this case does not come under act of God, therefore, the appellant/respondent cannot avoid liability. Act of God does not provide excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence. After considering the submissions of both the learned counsels the learned Commissioner came to the conclusion that the incident in this case does not come under act of God, therefore, the appellant/respondent cannot avoid liability. (iv) In Issue No. 4, the learned Commissioner came to conclusion that the respondents/claimants are entitled to compensation and calculated the compensation amount as follows;- Age of the deceased 30 years as given in the post-mortem report, and monthly income of the deceased as Rs. 4,000/- P.M. Rs. 4000 x 50% x 207.98 (30 years) Rs. 2000 x 207.98= Rs. 4,15,960/- (v) In Issue No. 5, the learned Commissioner held that the appellant/opposite party responsible for not giving fatal accident report of the deceased and also for not paying the compensation for 30 days from the day it fell due i.e., from the date of accident, and, directed the appellant/opposite party to show cause as to why the penalty of 50% of the award amount should not be imposed. The learned Commissioner also awarded interest @ 9% p.a beginning from the completion of 30 days from the date of accident till the compensation amount is paid. 6. Aggrieved, the appellant/opposite party has come to this Court under section 30 of the Act as sated above, assailing, the impugned judgment and order on the grounds summed up as follows;- (i) That the learned Commissioner failed to appreciate that the accident occurred when the deceased was returning from the work, and as such, the accident cannot be held to have occurred during the course of employment of the deceased, therefore, the appellant/opposite party ought not to have been saddled with the liability of paying compensation to the respondents. (ii) That the incident occurred due to act of God, and there was no negligence on the part of the appellant/opposite party, therefore, the appellant ought not to have been saddled with the liability of paying compensation to the respondents. (iii) That the learned Commissioner failed to appreciate that the daily wage of the deceased was only Rs. 51.10/- with some allowances which does not amount to Rs.4,000/- as claim by the respondents/claimants, therefore, the compensation amount calculated based on the same was erroneousness and not based on facts. (iii) That the learned Commissioner failed to appreciate that the daily wage of the deceased was only Rs. 51.10/- with some allowances which does not amount to Rs.4,000/- as claim by the respondents/claimants, therefore, the compensation amount calculated based on the same was erroneousness and not based on facts. (iv) That the daily wage of Tea Garden Workers are determine as per agreement reached with the Workers’ Association. All these fact was not taken into consideration by the learned Commissioner. (v) That the learned Commissioner failed to take notice of the fact that the respondent/claimant No.1, was already given employment as a Daily rated Workmen on compassionate ground, therefore, issuance of show cause notice as to why 50% of penalty of the awarded amount should not be paid by the appellant/opposite party was uncalled for. 7. This Court after having heard the learned counsels representing the parties had framed the following four issues for disposing the appeal;- “1. Whether the learned Commissioner was correct n taking the monthly wage of the deceased as Rs. 4,000/- when appellant had stated in the written statement and the witness of the appellant had clearly deposed that the daily wage of the deceased was Rs. 51.10? 2. Whether the learned Commissioner was justified in taking the monthly wage of the deceased as Rs. 4,000/- by relying solely on the statement of the respondents without there being any documentary evidence being produced by the respondents? 3. Whether the learned Commissioner was correct in saddling the appellant with the liability of payment of compensation when the accident was “an act of God” and there was no negligence of laches on the part of the appellant? 4. Whether the learned Commissioner was correct in coming to the finding that the accident had occurred during the course of employment of the deceased inasmuch as, the accident had occurred when the deceased was returning home after work?” 8. The first issue and second issue are taken up together as both of them are connected to each other. It is true that the claim of the respondents/claimants that the deceased workman earned monthly income of Rs. 4,000/- was refuted in the written objection of the appellant/opposite party and the same was supported by the only witness produced in support of the case of the appellant/opposite party. It is true that the claim of the respondents/claimants that the deceased workman earned monthly income of Rs. 4,000/- was refuted in the written objection of the appellant/opposite party and the same was supported by the only witness produced in support of the case of the appellant/opposite party. However, it must be noted here that the burden of proving the claim has been discharged by the respondents/claimants when they had submitted their affidavit in support of their claim and from there on, the burden of proving that their claim is not true had shifted to the appellant/opposite party. Mere statement of the witness supporting the case of the appellant/opposite party is not sufficient since the deceased workman was their employee. The pay record/pay roll is in their custody and they should have produced it before the learned Commissioner. Since, they did not do so, the presumption that the claim of the respondents/claimants is true has to be drawn against the appellant/opposite party. Moreover, it was admittedly stated that the daily wage of the deceased workman was accompanied by allowances for ration, quarters, medical, electricity, firewood etc. Calculating all these together could easily come to the amount not be less than Rs. 4,000/- . For the reasons stated above, it is concluded that the learned Commissioner was justified in having arrived at the conclusion that the monthly wage/pay of the deceased workman was Rs. 4,000/. 9. Now, coming to the Issue No. 3 and Issue No. 4, since they are connected to each other they are also taken up together; Act of God as may be understood from the explanation given by the Hon’ble Supreme Court and relied upon by the learned Commissioner is something which human beings cannot predict and stop. In other words, it is something that happens beyond human control. In the case of the deceased, there is no evidence to show that there was suddenly a big storm or cyclone which brought down the tree that hit him on the head. Therefore, one can conclude that no act of God was involved. It should also be noted that the incident happened within the compound of the bungalow of the Manager which was the place of employment of the deceased workman. If the employer was a little careful they would have noticed the tree which was about to fall anytime and cause danger to life. It should also be noted that the incident happened within the compound of the bungalow of the Manager which was the place of employment of the deceased workman. If the employer was a little careful they would have noticed the tree which was about to fall anytime and cause danger to life. It was because of the sheer negligence on the part of the appellant/opposite party that such a tree, which could have been easily noticeable and should have been cut was not cut before it could cause danger to any life. Further, the fact that the deceased workman was in his place of employment i.e. bungalow of the Manager shows that he was doing or performing his duty as a Cook and, the fact that the incident happened right inside the premise or the compound of the bungalow shows that the incident had occurred during the course of his employment. In view of what has been stated above, the two issues are settled in favour of the respondents/claimants. As far as the points raised by the appellant/opposite party are concerned, they have been answered in the above discussion. However, taking into account of the fact that the respondent/claimant No.1, had already been given employment by the appellant/opposite party, I am of the considered view that the notice issued by the learned Commissioner was uncalled for. Therefore, the decision of the learned Commissioner needs to be modified as far as, the show cause notice, issued by him to the appellant/opposite party is concerned i.e., “to show cause as to why penalty should not be imposed”. Therefore, that portion of the impugned judgment and order is set aside. In the result, the impugned judgment is upheld but with modification to the extend indicated above. With this, the appeal is dismissed.