JUDGMENT S. G. SHAH, J. 1. Heard learned advocate Mr. Vibhuti Nanavati for the appellant, learned advocate Mr. Haresh N. Parekh for the respondent No.1 and learned advocate Mr. Rajesh P. Mankad for respondent No.2.1. Perused the record. 2. The appellant herein is original opponent No.2 before Commissioner under the Workmen's Compensation Act and Labour Court at Bhavnagar in W.C. Application (Fatal) No.1 of 2012, the respondent No.1 is original opponent No.1; whereas respondent No.2 is original claimant before the Commissioner. The claimants have preferred an application under Workmen's Compensation Act, 1923 against the employer and its insurer claiming Rs. 8,47,160/-, contending that husband of claimant No.1 and father of claimants No.2 and 3, who was serving with opponent No.1, died on 5.5.2010 when he received injuries during the course of his employment with opponent No.1. Initially, claim was filed only against the employer, but, ultimately, present appellant was joined as insurer of the employer. 3. After allowing both the sides to adduce evidence, by impugned judgment and award dated 13.8.2015, the Commissioner has calculated an amount of Rs. 5,71,833/- as compensation, payable to the claimants, because of the accidental death of victim Guatam Paras Sahani while he was on his duty with opponent No.1. However, considering the factual evidence on record that opponent No.1 - employer has already paid Rs. 1 Lac to the claimants after the incident, the Commissioner has awarded the remaining amount of Rs. 4,71,833/- with 8% interest to be paid by both the opponents i.e. employer as well as the Insurance Company within 30 days. The Commissioner has also awarded 20% amount being Rs. 1,14,366/- on full amount of compensation i.e. Rs. 5,71,833/- to be paid by the employer to the claimants within 30 days. 4. Being aggrieved by such award, the Insurance Company has preferred this appeal mainly on the ground that they have never accepted the liability to indemnify the employer against his legal liability under the Workmen's Compensation Act, 1923 for any of its employee, including the victim, though they have accepted the group insurance of several employees' working under the respondent No.1 - employer. It is also contended by the appellant that so far as the liability under such group insurance policy is concerned, they have already repudiated the same considering that death of the victim was not because of the injuries sustained in the accident, but it was because of virtigo, as per their investigator's report. 5. As against that, learned advocates for the victim employee and his employer are relying upon few judgments of different courts, some of them are referred and relied upon by the Commissioner, submitting that irrespective of nature of policy, when employer has paid premium for his employees', the Insurance Company is certainly liable to pay compensation as per impugned award. 6. I have perused the available documentary as well as oral evidence and considered rival submissions. 7. Irrespective of rival submissions for confirming the liability of the appellant to pay full set of compensation, the basic evidence on record needs to be summarised as under:- (a) there is no dispute that the victim Gautam P. Sahani was serving with opponent No.1 and therefore, there was relationship between the deceased victim and employer, which certainly attracts the provisions of Workmen's Compensation Act, 1923, if an employee received injuries or died during the course of his employment; (b) it is also undisputed fact that on 5.5.2010, when deceased - victim was on his duty of breaking ship on Plot No.158 and during course of his employment, when he was shifting certain materials from the cold-storage of old ship to be broken, somehow because of leakage of some gas in the cold-storage, the victim became unconscious at the spot and thereupon, the co-workers have called upon the Supervisor and other responsible persons and took the victim to the hospital, where he was declared dead. The claimants have categorically pleaded and stated on oath in his deposition at Exh.51 that the pipeline of CO2 was cut during the ship breaking and because of such cutting of pipeline when CO2 gas leaked, the victim became unconscious and died. The claimants have categorically pleaded and stated on oath in his deposition at Exh.51 that the pipeline of CO2 was cut during the ship breaking and because of such cutting of pipeline when CO2 gas leaked, the victim became unconscious and died. Though P.M. note at Exh.44 does not disclose the actual cause of death and though in column No.23 it is stated that cause of death is kept pending till the availability of report from FSL and Pathology laboratory, the factual details disclosed herein above makes it clear that when there was incident on the ship, which was to be broken, either by shifting of some materials or because of cutting of pipeline, if at all there is leakage of gas being CO2 and if victim has came in contact with voluminous gas of CO2 at the place of incident, there is no reason to believe that death did not occur because of accidental injuries. (c) Fortunately, the report of FSL is also available on record with P.M. note at Exh.44, which is issued by Department of Forensic Medicine, Medical College, Sir T Hospital, Bhavnagar and addressed to P.I. of Alang Police Station wherein it is categorically disclosed that cause of death of the deceased is accidental gas poisoning. Therefore, there is specific evidence on record that death of the victim was because of poisonous gas as disclosed in police papers and the averments in their pleading and evidence. Therefore, it cannot be said that death did not occur during the course of employment, but it was only because of virtigo as pleaded and tried to be proved by the appellant - Insurance Company. It cannot be ignored that though appellant - Insurance Company has came forward with a case that the death was not because of accidental injuries, the fact remains that they have not disproved the FSL report and they simply relied upon the deposition of one Jagdishbhai Jayantilal Pandya, their Assistant Manager, who has filed his affidavit as examination-in-chief at Exh.71, stating on oath they have repudiated the claim of the present accident by registered letter dated 2.11.2011, disclosing that as per investigator's report, death of injured person is due to virtigo and not due to accidental injury, which is not covered in the policy conditions. Hence, the claim repudiating such letter dated 2.11.2011 is also produced at Exh.70; whereas, office copy of Personal Accident Policy (Group) in favour of the employer effective from 19.1.2010 to 18.1.2011 is produced at Exh.69. (d) Therefore, so far as the cause of death is concerned, the oral as well as documentary evidence is supported by medical evidence to confirm the same. The Insurance Company has not come forward with the report of Investigator so as to scrutinize the same by Judicial Authority and the claimant, including his ability to investigate such issues, more particularly when there is P.M. note and FSL report, disclosing altogether different factual details. Therefore, only because officer of Insurance Company or their letter discloses some fact and that too referring their investigator's report without disclosing such report before the court, such evidence cannot be accepted as a gospel truth to believe that death of the employee was due to virtigo and not due to accidental injury. As already discussed herein above, there is documentary evidence in the form of FSL report confirming that death of the employee was because of poisonous gas, which supports the documentary evidence in the form of Exhs.33 to 44 being police papers and P.M. note so also Exh.51 - deposition of the claimant. 8. Therefore, I do not find any reason or substance to interfere with in the determination and conclusion by the Commissioner that death of the victim was accidental and therefore, his legal heirs are entitled to compensation under the W.C. Act, wherein even negligence of the victim is not to be looked into. 9. However, the second issue is quite legal and technical when Insurance Company has come forward with a case that they have not insured and thereby accept the liability of the employer to indemnify him for his legal liability under the W.C. Act, but they have simply accepted the group accident insurance policy, copy of which is produced at Exh.69 and therefore, their liability is a contractual liability as per this policy and not beyond that and in such contractual liability, generally the liability to pay particular amount, always rests upon the amount of premium paid and except for particular sum to be paid by the Insurance Company in case of particular event. There is substance in such submission, because Exh.69 specifically confirms that it is group personal accident policy, wherein Insurance Company has declared that the insured has made a proposal to the Insurance Company with a declaration in schedule thereto, which shall be the basis of such contract and which is deemed to be incorporated in the contract of insurance and based upon there it was set-forth in respect of persons, whose details are disclosed in the schedule as insured persons and therefore, Insurance Company has accepted the premium as disclosed in the schedule, subject to and in consideration of the payment to the company, the premium for the period stated in the schedule or for any further period for which the company may accept payment and subject to the terms, provisions, exclusions, definitions and conditions contained therein or endorsed or otherwise, the company shall pay the insured to the extent and in the manner provided in policy document, if any of the insured person sustained any bodily injury, resulting solely and directly from accident caused by external violent and visible means. In that case, the company shall pay to the insured or his legal representatives, as the case may be the sum or sums set-forth in the schedule with the policy in respect of any of the insured persons specified in the schedule; whereas the schedule of premium and liability accepted by the Insurance Company, which is part of such policy, makes it clear that the Insurance Company has accepted the total premium of Rs. 1,18,370/- excluding service-tax and stamp etc. so as to insure 356 unnamed employees' confirming that their liability for each such unnamed employee, would be limited to Rs. 2 Lacs for single incident per person as per Risk/Table III and thereby, though policy is for total risk of Rs. 7,12,00,000/-, the liability of the Insurance Company for single incident per person is fixed to only Rs. 2 Lacs for 356 unnamed employees. The policy also specifically discloses in condition No.2 that 'No sum payable under this policy shall carry interest." 10. Therefore, irrespective of contention by learned advocate Mr. Vibhuti Nanavati for the Insurance Company that though they have accepted the premium of Rs. 2 Lacs for 356 unnamed employees. The policy also specifically discloses in condition No.2 that 'No sum payable under this policy shall carry interest." 10. Therefore, irrespective of contention by learned advocate Mr. Vibhuti Nanavati for the Insurance Company that though they have accepted the premium of Rs. 1,18,370/- for 356 unnamed employees', since such liability is contractual and since they have already repudiated such claim by letter dated 2.11.2011 (Exh.70), the Commissioner under W.C. Act has no jurisdiction or authority to pass any award against Insurance Company, it cannot be ignored that though there cannot be full liability of the Insurance Company to indemnify the employer - opponent No.1; so far as its liability under W.C. Act is concerned, in absence of any specific risk being insured by the Insurance Company or in other words, in absence of payment of premium for such liability by the employer and confirmation by the Insurance Company by issuing the policy, covering the liability under the W.C. Act also, it can certainly be said that Insurance Company is not liable to pay full amount of compensation as awarded by the Commissioner under the W.C. Act. It cannot be ignored that irrespective of technicality regarding jurisdiction of the Commissioner, whether entitled to direct the Insurance Company to make payment of amount under the General Insurance Policy, it would be appropriate to consider that when parties are in litigation for couple of years together, and when Insurance Company has already accepted an amount of Rs. 1,18,370/- towards premium for Group Personal Accident Policy for as many as 356 unnamed employees, considering the benevolent provisions of W.C. Act and the powers of the Commissioner to adjudicate the right of the victim of the accident, which falls within such Act, the Insurance Company cannot be allowed to succeed in their technical plea that it would be an issue between the employer and the Insurance Company only, which can be resolved in appropriate litigation and not by the Commissioner under the W.C. Act. 11. Therefore, it would be appropriate to modify the award so as to direct the Insurance Company to pay the amount of their liability being Rs. 2 Lacs as per their policy, considering the fact that their repudiation of claim is not supported by any cogent and reliable evidence, supported by their own investigators, more particularly, when activity of such investigator is questionable under law. 2 Lacs as per their policy, considering the fact that their repudiation of claim is not supported by any cogent and reliable evidence, supported by their own investigators, more particularly, when activity of such investigator is questionable under law. Moreover, when there is specific evidence available on record of judicial proceedings that there was an accident occurred to the deceased employee when he was on duty and thereby, it cannot be stated that there was no accident at all; whereas, so far as cause of action is concerned, there also, there is specific evidence as discussed herein above, that the death was because of poisonous gas and thereby, it is clear that the cause of death was not virtigo as claimed by the appellant - Insurance Company. Therefore, appellant - Insurance Company has to pay the amount of their liability as per Personal Accident Policy (Group) and that too without any interest, since there is specific clause in the policy. 12. Irrespective of above-referred factual and legal position, based upon the contract of insurance between the employer and employee, when both the sides have relied upon few decisions, they need to be checked. The appellant is relying upon the decision in the case of New India Assurance Co. Ltd. Vs. Arunachalam and Others reported in, (2007) ACJ 1580 wherein Hon'ble Mrs. Justice Chitra Venkataraman of Madras High Court has held that when insurance policy was not under Workmen's Compensation Act, Insurance Company cannot be held liable to pay compensation under such Act, but only principal employer alone is liable, there cannot be any dispute to such principle, wherein Single Judge has practically relied upon two previous decisions of Hon'ble Supreme Court of India, confirming that proposition:- (1) New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya reported in, (2006) ACJ 1699 (SC); (2) P. J. Narayan Vs. Union of India, (2004) ACJ 452 (SC). 13. Whereas, learned advocate for the respondent No.1 - employer has relied upon the decisions in the case of - (1) The Oriental Insurance Co. Ltd. Vs. Kuttan Nair, S/o. Achutan Nair & Another. decided by K.T. Shankaran, J. in M.F.A. No.810 of 2002(B) by Kerala High Court, (2) The National Insurance Co. Ltd. Vs. Sivaraman reported in,2010 SCC OnLine Mad 725, decided by C.S. Karnan, J. and (3) Oriental Insurance Co. Ltd. Vs. Ltd. Vs. Kuttan Nair, S/o. Achutan Nair & Another. decided by K.T. Shankaran, J. in M.F.A. No.810 of 2002(B) by Kerala High Court, (2) The National Insurance Co. Ltd. Vs. Sivaraman reported in,2010 SCC OnLine Mad 725, decided by C.S. Karnan, J. and (3) Oriental Insurance Co. Ltd. Vs. D. Sivasankar reported in,2014 SCC OnLine Mad 238, decided by R. Mahadevan, J., wherein the Single Judge of both the High Courts have held that irrespective of nature of policy, Commissioner under W.C. Act is empowered to direct the Insurance Company to pay the amount of compensation. It seems that in none of such cases, the decision in the case of New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya and P.J. Narayan Vs. Union of India relied upon in the case of Arunachalam (supra) were referred to by the concerned High Courts and therefore, when such judgments of the concerned High Courts at later point of time is not following the decision in the case of Arunachalam (supra), considering the ratio laid down by the full Bench of Hon'ble Supreme Court of India in the case of National Insurance Company Limited Versus Pranay Sethi and Ors. reported in, (2017) 16 SCC 680 , we can ignore the judgments by later Bench. However, in the present case, there is one more issue regarding liability of Insurance Company to pay amount of their contractual liability under the Personal Accident Policy (Group). Therefore, though there was similar issue before the case in Arunachalam (supra), though I am confirming the view taken in the case of Arunachalam (supra), considering the discussion herein above, it would be appropriate to modify the award, though the liability of the Insurance Company is enumerated to indemnify the owner for full award in following terms. 14. The appeal is partly allowed whereby the impugned award is modified so as to make it clear that appellant - Insurance Company is not liable to pay the total amount of award with interest as per the award. To that extent, operative order is to be modified. However, the Insurance Company is directed to pay Rs. 2 Lacs as amount of Personal Accident Policy (Group) to the heirs of the victim. 15. In view of above decision, the Commissioner is directed to disburse only fixed amount of Rs. To that extent, operative order is to be modified. However, the Insurance Company is directed to pay Rs. 2 Lacs as amount of Personal Accident Policy (Group) to the heirs of the victim. 15. In view of above decision, the Commissioner is directed to disburse only fixed amount of Rs. 2 Lacs with interest accrued on it from the date of deposit of amount before the Commissioner out of the total amount deposited by the appellant - Insurance Company in favour of the original claimants. While disbursing such amount, the Commissioner shall see to it that the amount is being paid by Account Payee Cheque/Pay Order directly in the name of widow and minors of the deceased victim and that too payable to the Bank of their choice of the District of their residence. The Commissioner shall also invest 100% amount of the minors' share in FDR till they become major and 50% amount of the share of the widow shall be invested for five years in the Bank of their choice as stated herein above. 16. Thereby, out of the amount deposited by the Insurance Company being total Rs. 6,19,596/-, the Commissioner shall refund an amount of Rs. 4,19,596/- with accrued interest to the appellant - Insurance Company. 17. However, it is also made clear that rest of the award is not disturbed and thereby, heirs of the victim are certainly entitled to recover compensation as awarded from opponent No.1 - employer.