JUDGMENT S.G. Shah, J. The appellants herein are original claimants before the labour court and Commissioner under Workmen's Compensation Act, 1923 at Himmatnagar in W.C. Case No.168 of 1996 (Old No.378 of 1993) claiming Rs. 86,764/- towards compensation for the death of Shankerbhai Kavabhai Katara. 2. The case of the appellants claimants before the Commissioner was to the effect that on 24.4.1991 when deceased victim was called for loading stones from quarry into truck No.GRN6025, because of accident while loading heavy stones in the truck, he received serious injuries which resulted into his death because of heavy bleeding. The appellants have claimed that deceased was getting Rs. 140/- per day and in all Rs. 1,000/- in a month considering total number of truck load being loaded and, therefore, claimed compensation from the owner of the truck and its insurance company. However, pending trial, claimants have let-go their claim so far as penalty is concerned, by filing a Pursis to that effect on 28.11.2003 at Exh.44. 3. Such claim petition was resisted by the respondents opponents being owner and insurer of the vehicle in the accident. The sum and substance of the respondents is to the effect that deceased victim was not labourer on the truck but he was labourer in the quarry and, therefore, neither the owner nor the insurance company can be held liable to pay compensation to the claimants. 4. After recording evidence from both the sides, the Commissioner has dismissed the application of the appellants claimants by impugned judgment and order dated 6.3.2004. 5. Being aggrieved by rejection of claim for compensation by impugned judgment appellants being original claimants have preferred this appeal. 6. Therefore, now, we have to scrutinize the entire Record & Proceedings so as to verify that whether appellants are entitled to compensation or not and, thereby, whether Commissioner has properly appreciated the evidence or not and whether he has committed any error of law or not. 7. Relying upon the available proceedings on record, the Commissioner has framed as many as 9 issues, but amongst them, 6 issues were decided against the appellants claimants though issue No.1 is decided in favour of the appellants that deceased victim was workman and entitled to compensation under the Act. 7. Relying upon the available proceedings on record, the Commissioner has framed as many as 9 issues, but amongst them, 6 issues were decided against the appellants claimants though issue No.1 is decided in favour of the appellants that deceased victim was workman and entitled to compensation under the Act. However, so far as employee by truck owner is concerned, Commissioner has came to the conclusion that victim was not employed by truck owner and, therefore, claim is rejected. 8. Unfortunately, though Commissioner has decided the issue No.8 in favour of the claimant and held that deceased victim was workman of the quarry owner, in that case, commissioner has failed to join the quarry owner as opponent and to pass appropriate order against him to pay compensation to the widow and legal heirs of the deceased victim of such incident. Therefore, to that extent, the impugned judgment is certainly vulnerable and needs to be scrutinized properly. 9. So far as issue nos.6 and 7 is concerned, it seems that the Commissioner has taken a short cut by making a haste in stating that since claimant is not entitled to compensation, they are not entitled to penalty and interest also, though, claim for penalty has already been let-go by the claimants. The Commissioner has also failed to appreciate that irrespective of entitlement of compensation from appropriate litigant, the claimants have certainly proved the earning activities and income of the deceased victim. However, the Commissioner has held that claimants have failed to prove that deceased was earning Rs. 1,000/-. 10. In support of rival claim, on one hand, petitioner has adduced certain documentary as well as oral evidence, whereas, on other hand, respondents are solely relying upon their pleading and cross examination of appellants' witnesses. 11. The appellants claimants have examined Kavabhai Khemaji Katara as PW-1 at Exh.40, who is father of the deceased victim. Witness is 60 years old labourer and residing at Village Umedi in Khervada Taluka of Udaipur District, Rajasthan State. Therefore, in such cases, for compensation, his deposition is to be scrutinized and appreciated not only with his document but also with concept that he is not a litigant and deposition is before Commissioner which is though enjoying powers of Civil Court, it is not Civil or Criminal Court. Therefore, in such cases, for compensation, his deposition is to be scrutinized and appreciated not only with his document but also with concept that he is not a litigant and deposition is before Commissioner which is though enjoying powers of Civil Court, it is not Civil or Criminal Court. Thereby, one has to consider the settled legal position while appreciating such evidence that strict proof and evidence is not required before such tribunal and Commissioner for awarding compensation to the victims of some mishap. 12. The perusal of the deposition makes it clear that the witness has categorically deposed on oath that his deceased son had been on labour work to load stones quarry in truck No.GRN-6025 and that while loading truck at night hours i.e. 1.30 am on 24.4.1991, he received injuries while loading stones on truck for which he was taken to Civil Hospital at Himmatnagar where he died. It is his say that victim was aged about 35 years and he was working as a labourer for loading and unloading of such stones on such truck and he was getting Rs. 35/- per loading and that in all there was 6 loading per day and, thereby, victim was getting Rs. 140/- to Rs. 150/- per day but monthly he was getting Rs. 1,000/-. He has categorically deposed, they have served a notice upon opponents on 3.5.1991 through their advocate and produced relevant documentary evidence including FIR, Panchnama, Post Mortem Report, Copy of notice, its acknowledgment etc. on record. During cross examination, witness has categorically denied that his son was serving in a quarry as a labourer. He also denies about his knowledge regarding owner of the quarry. He also denied that owner of the quarry namely; Nurbhai Kamubhai was paying salary to his deceased son and other son also who was working at such place. He admits that their sons were called by quarry man. He also denies by the negative suggestion regarding earning capacity and earnings of the victim. However, he admits that investigator of the company has recorded their statement on 15.11.1992; so also statement of his other son. However, he categorically denies the suggestion that he has disclosed in such statement before the investigator that his deceased son was working for and in stone quarry as a labourer. 13. However, he admits that investigator of the company has recorded their statement on 15.11.1992; so also statement of his other son. However, he categorically denies the suggestion that he has disclosed in such statement before the investigator that his deceased son was working for and in stone quarry as a labourer. 13. In addition to above referred oral evidence of the claimants, claimants have produced on record certain documentary evidence. At Exh.35, complaint of the incident is produced wherein complainant who is brother of the victim, namely; Dhulaji Kavaji Katara has stated before the Investigating Officer that on 24.4.1991, at about 1.30 am i.e. after midnight, truck No.GRN-6025 came to the quarry of Nurbhai and, therefore, he with his brother and other labourers had been to the place in quarry from where stones were to be loaded in the truck. It is also stated that while loading such truck by stone, victim had received serious injuries on his body when stone was dashed with body of the truck and, there was heavy bleeding. Therefore, they have conveyed such fact to Nurbhai and taken his brother to Palanpur. It is further stated that in hospital, his brother was declared dead and, therefore, he is lodging the complaint. In view of such FIR, respondents have contended that deceased was not working with the truck but was employee of the Nurbhai. However, the fact remains that practically deceased was working for loading of the truck and, therefore, he is to be considered as labourer for loading and unloading of the truck. Exhs.36 and 37, inquest panchnama and panchnama of the place of incident simply confirms the incident narrated in the complaint as supporting documents and, therefore, no further discussion is required. 14. Whereas, at Exh.38, there is fitness certificate issued by RTO, Himmatnagar for the truck No.GRN-6025 and at Exh.39, there is certificate of insurance of the same truck confirming that it is a commercial vehicle policy under the Motor Vehicles Act for the period between 1.6.1989 and 31.5.1990, whereas, similar certificate of insurance for the period between 1.6.1990 and 31.5.1991 is at Exh.53. The perusal of both these documents confirm that the respondent No.2 has accepted the risk not only for 3rd party liability to public risk i.e. as required by the statute but also accepted additional premium for insuring the insured against his own damage to the vehicle; so also for legal liability to paid driver/owner as per endorsement No.16 with similar additional liability for 6 coolies and accepted additional premium of Rs. 64/- for the previous policy for the year 1989-90 whereas for similar risk for the policy between June, 1990 and May, 1991, the insurance company has accepted Rs. 105 as additional premium for covering risk of the owner for any payment to be made to one driver, one cleaner and 5 coolies. In both the policies, insured has also paid additional amount of Rs. 150/- and Rs. 75/- respectively in 2 years for increasing 3rd party risk. 15. In any case, both the insurance policies are with additional coverage of risk as per endorsement Nos.16, 21, 23, 26 and 57 in previous year and with endorsement Nos.17, 22, 24, 26, 56 and 70. Thereby, when on the date of incident i.e. 24.4.1991, the second policy as per Exh.53 is in force and when insurance company has produced on record only certificate of insurance without producing full policy document with all its endorsement, an adverse inference is to be drawn against insurance company that text of the policy is certainly against it so as to cover the risk of claimants and, therefore, it is not produced on record, more particularly, when insurance company has accepted additional premium of more than Rs. 5,000/- for covering different type of risk including risk for coolies. 16. Claimants have also produced on record, notice served by them on 13.5.1991 to the owner and insurer of the vehicle in question as per Section 10 of the Workmen Compensation Act with its enactment. Thereby, both the respondents were aware about the stand by the claimants that they are not going to claim compensation under the Act considering the fact that deceased victim had received fatal injuries while loading the truck and, therefore, claimed Rs. 86,764/- as compensation with 50% penalty and interest over it. 17. Thereby, both the respondents were aware about the stand by the claimants that they are not going to claim compensation under the Act considering the fact that deceased victim had received fatal injuries while loading the truck and, therefore, claimed Rs. 86,764/- as compensation with 50% penalty and interest over it. 17. However, the insurance company has in addition to certificate of insurance produced typed copy of endorsement No.17 on a separate schedule regarding legal liability to persons employed in connection with the operation and/or maintaining and/or unloading of Motor Vehicle (FOR GOODS VEHICLE) which reads as under: ENODRSEMENTS 17. Legal Liability to persons employed in connection with the operation and/or maintaining and/or unloading of Motor Vehicles. (FOR GOODS VEHICLE) In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the Insured against his legal liability under :- The Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the Insured in such occupation in connection with the ........# and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with its written consent. The premium having been calculated at the rate of Rs. 15/- per driver (and/or cleaner or conductor and/or person employed in loading and/or unloading but not exceeding seven in number including driver and cleaner). Provided always that:- (1) This endorsement does not indemnify that Insured in respect of any liability in cases where the Insured holds or subsequently effects with any Insurance Company or group of Underwriters a policy of Insurance in respect of liability as herein as defined for his general employees. (2) The Insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations. (3) *The Insured shall keep a record of the name of each driver cleaner conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at all times allow the company to inspect such record. (3) *The Insured shall keep a record of the name of each driver cleaner conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at all times allow the company to inspect such record. (4) In the event of the Policy being cancelled at the request of the Insured no refund of the premium paid in respect of this Endorsement will be allowed. Subject otherwise to the terms exceptions conditions and limitations of this policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988. 18. Therefore, now, it is clear and certain that vehicle with which accident took place was not only insured by the respondent No.2 but respondent No.2 has agreed that in consideration of the payment of additional premium, it is agreed between the insured and insurer that notwithstanding anything contained in the policy to the contrary, the insurer shall indemnify the insured against legal liability under the Workmen's Compensation Act, 1923 and subsequent amendment of that Act prior to the date of such endorsement and also under the Fatal Accidents Act, 1855 or at common law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading/unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the ... .# and in addition be responsible for all costs and expenses incurred with its written consent. Therefore, though there is some condition imposed upon the insured to maintain certain register and information, basically insurance company cannot be exonerated from its liability to pay compensation in such a case. 19. Then the only issue remains is with reference to considering that whether victim was employee of the owner of the truck or not. 20. At the first instance, it must be considered that when none of the respondent/s i.e. either owner or insurer of the truck in question had replied to the statutory notice of the claimants, an adverse inference needs to be drawn that since they have no defence they have not responded to such notice else they would have immediately conveyed the claimants that they have nothing to do with the victim. It is also evident from the record that except relying upon the statement in FIR that too by someone else, then the claimant or the victim himself, regarding owner or administrator of the stone quarry, it is pleaded by the respondents and endorsed by the Commissioner that victim was not serving on truck for loading the truck but was serving under the owner of the quarry. However, when such fact is tried to be proved during oral evidence by cross examining the claimant on behalf of the insurance company, it is clear and certain that the claimant has in categorical terms denied that his son was working in the stone quarry. The witness has also denied that Nurbhai of such stone quarry was paying labour charges to the deceased victim. But the most interesting and surprising fact is with cross examination by the insurance company with reference to the investigator when advocate for the insurance company has inquired about the recording of statement of such witness by their investigator and when such witness has admitted that 'Yes' investigator has recorded his statement. However, without calling the investigator and without producing such statement on record, when insurance company has tried to confirm from the witness that he has disclosed to the investigator in his statement that victim was serving in a stone quarry as a labourer, witness has denied such fact and in that case, non production of copy of statement and non examining the investigator would certainly result into taking adverse inference against the company that when witness specifically admits that his statement was recorded but denies that he has never stated to the investigator that his son was working as labourer in stone quarry, by all probabilities, he must have stated to the investigator that his son was working for loading the truck, at the relevant point of time and, thereby, he was treated as a Workman of the truck owner for loading the truck and when insurance company has covered the risk of injuries to such persons as per the Act by accepting additional premium, owner and insurer of truck in question are certainly responsible and liable to pay the compensation to the claimants. Similar is the situation, regarding statement of complainant as well as one Someshwar Vajaji Bhagora when witness specifically admits that though their statement was recorded, none of them have stated that deceased was working as a labourer in stone quarry. Even after such deposition on oath, if respondent fails to prove on record, their stand by producing such statement and examining investigator, an adverse inference against the respondents needs to be taken to believe that what is stated by the witness on oath before the Court i.e. his son was died while loading stone on truck is to be believed so as to conclude that victim was at the time of incident working as a labourer/coolie on the truck for loading goods in it. In view of such background, victim would be considered as employee and labourer/coolies for truck owner and thereby truck owner and insurer are jointly and severally liable to pay compensation to the claimants. 21. It cannot be ignored that claimants have already let-go their claim of penalty and, therefore, on the contrary respondents should have been thankful to him. 22. In view of above discussion, it becomes clear that the Commissioner has committed a blunder by relying upon only one or few lines from oral and documentary evidence instead of considering overall and full set of documentary and oral evidence so as to arrive at the conclusion that victim was not serving with the opponent but he was serving with the quarry owner. Therefore, when overall consideration of factual details and evidence on record makes it clear that except pleading by the respondent/s when there is no evidence to conclude that deceased was not working with the respondent and when respondent could not either prove their case that deceased was labourer of the quarry or to rebut the evidence of the claimants that victim was working for loading the truck as a coolie at the relevant time, it can be concluded based upon evidence that deceased victim was working on a truck as a labourer for loading the truck instead of considering the pleading as a gospel truth so as to negativate such evidence before judicial authority. 23. 23. Then the issue remains is with reference to quantum of compensation that may be awarded to the claimants when it is concluded that deceased victim was working as labourer/coolie on the truck and insured by respondent/s. However, so far as quantum of compensation under the W.C. Act is concerned, it is a structured formula and, therefore, there is no discretion of any nature and thus claimants are entitled to their legitimate claim as per the provisions of law. 24. Therefore, considering the provision of Section 4 of the W.C. Act as applicable on the date of incident i.e. 25.4.1991, an amount equal to 40% of the monthly wages of the deceased workman is to be multiplied by the relevant factor and if such calculation is less than Rs. 80,000/-, then, claimants are entitled to minimum Rs. 80,000/-. Therefore, considering Rs. 1,000/- as monthly wages of the deceased workman and his age was 25 years as per record, the relevant factor would be 216.91 which is to be multiplied by 400 being 40% of the monthly wages of the deceased, which would come to Rs. 86,764/-. 25. Therefore, applicants are entitled to Rs. 86,764/- as compensation jointly and severally from both the opponents since deceased was working for loading on truck of respondent No.1 which was insured by respondent No.2 wherein liability for such claim is covered. Since the petitioner has already let-go his right to claim penalty, there is no reason to award penalty. Whereas, so far as interest is concerned, considering overall facts and circumstances and decisions of Hon'ble Supreme Court of India on the point of interest even under the M.V. Act, it would be appropriate to award 9% interest from the date when right to get compensation is accrued i.e. 24.5.1991 instead of date of application being 1.7.1992 because notice of incident was dated 13.5.1991. 26. Reference to the decision of Hon'ble Supreme Court of India in case of Maghar Singh v. Jashwant Singh reported in, (1998) 9 SCC 134 by larger bench is relevant at this stage. In such case, Hon'ble Supreme Court of India has held that absence of appointment letter or entries in register regarding payment of salary in such cases of seasonal work is not material but when it is proved that the person is working for the employer, he is entitled to compensation under the Act. 27. In such case, Hon'ble Supreme Court of India has held that absence of appointment letter or entries in register regarding payment of salary in such cases of seasonal work is not material but when it is proved that the person is working for the employer, he is entitled to compensation under the Act. 27. In view of above, appeal is allowed whereby amount of Rs. 86,764/- is awarded with 9% interest from 24.5.1991 till date of realization against both the respondent/s. Liability to pay compensation is joint and several of both the respondent/s. The respondent shall make the payment of such compensation within 8 weeks since claimants have not received any amount of compensation for almost last 3 decades. When amount of compensation with full interest is deposited before the Commissioner under the W.C. Act, the Commissioner shall pass appropriate order of its disbursement considering the position of the claimants but it is specifically directed that initially Commissioner shall invest reasonable amount of compensation in FDR so as to safeguard the rights of the claimants. 28. R & P be sent back to the concerned Court at the earliest.