JUDGMENT : 1. The instant appeal, under Section 30 of the Workmen’s Compensation Act, 1923 has been preferred by the Appellant-Insurance Company against the award dated 8th of December, 2012 passed by the learned Commissioner, Kashmir Division, Srinagar/ Deputy Labour Commissioner, Srinagar in a claim Petition titled ‘Abdul Aziz Bohru & Anr. v. Ghulam Rasool Sheikh & Ors.’, whereby the claimants were held entitled to a total compensation of Rs.3,94,120/- in terms of Section 4 read with Schedule (IV) of the Act of 1923, from the date of the announcement of the award. 2. The impugned award has been assailed by the Appellant-Insurance Company, inter alia, on the grounds that the award is against the facts as well as law; that the deceased Nazir Ahmad Bohru was in the employment of Respondent-Ghulam Rasool Sheikh and got killed in an unfortunate accident as he was crushed by a falling stone from the Stone Quarry of the said Respondent-Ghulam Rasool Sheikh, while extracting stones and under the personal accident policy, the Respondent-Fareeda had received compensation (insured amount) from the Appellant-Insurance Company. 3. 3. It was alleged that the claimants-father and wife of the deceased filed a claim before the Commissioner for the compensation, claiming that the deceased while working with a Tipper got injured and succumbed; that this fact was brought to the notice of the learned Commissioner with a plea that the Appellant was not liable to pay the compensation in the Petition filed by the claimants, showing the deceased as having been employed with the alleged offending vehicle (Tipper); that the death of the deceased had been compensated by paying the compensation by the Appellant-Insurance Company for the employment of the deceased as a labourer for extracting stones from the Stone Quarry of the Respondent-Ghulam Rasool Sheikh, therefore, the Company, as the insurer of the vehicle, was not liable to pay compensation, showing the deceased as an employee of the Respondent-Mohammad Ramzan Rather, as owner of the alleged offending vehicle; that, without admitting the fact that the deceased was employed with the Tipper as a labourer, as has been claimed and held by the learned Commissioner, even if it is so, still the Appellant-Insurance Company is not liable to pay any compensation under the provisions of the Workmen’s Compensation Act, on the ground that the deceased was in the employment of Respondent-Ghulam Rasool Sheikh and not Respondent-Mohammad Ramzan Rather, in whose name the insurance contract existed with the Appellant-Insurance Company; that under the provisions of Workmen’s Compensation Act, under which the impugned award has been passed by the learned Commissioner, it is only the employer who is initially responsible to pay compensation to the legal heirs of the deceased employee or the insured employee, whatever the case may be and, in the case on hand, the deceased, undoubtedly, had been in the employment of Respondent-Ghulam Rasool Sheikh and not Respondent-Mohammad Ramzan Rather at the time of accident and, finally, it was prayed that, there being substantial question of law in the appeal, the same be allowed and the impugned award be set aside. 4. 4. The claimants filed a claim Petition under the provisions of the Employees Compensation Act, 1923 before the learned Commissioner on 25th of April, 2016, asserting therein that one Nazir Ahmad Bohru S/O Applicant No.1 (now deceased) and husband of Applicant No.2 was working with the Non-Applicant No.1 in his Stone Quary at Athwajan, Srinagar as Loader; that on 31st of August, 2005, the deceased, while loading the stones in Tipper bearing No. JKE-4737, met with an accident and succumbed to his injuries in the Hospital on the same day. 5. The learned Commissioner framed the following issues for trial of the claim Petition: “1) Whether the accident to the deceased has arisen out of and in the course of his employment; 2) Whether the Vehicle No. JKE-4737 involved in the accident was insured with non-applicant No.2 at the time of accident; 3) What were the wages and the age of the deceased employee at the time of his accident; and 4) Relief, if any.” The claimants examined Mohammad Iqbal Bohru, Mohammad Ibrahim Suhail and Ab. Latif Naik as their witnesses, besides the Applicant No.2-Fareeda, whereas, the Respondent did not lead any evidence. 6. The Non-Applicant Ghulam Rasool Sheikh, in his statement of Objections filed before the learned Commissioner, had admitted that the deceased was working in his Stone Quarry as Loader and, while loading the vehicle, he had received the injury causing his death. 7. The learned Commissioner, on the basis of the pleadings and the statements of the witnesses, held that it had been established that the deceased was working as Loader in the Stone Quarry and not as a Quarry Worker and that the deceased had received the accidental injuries, while loading the Tipper, which is the inseparable part of ordinary business of loading quarry vehicles and that the deceased was not involved in the process of quarry/ mine of stones, as such, it was held that the accidental injuries received by the deceased worker in the Stone Quarry No.12 at Athwajan on 31st of August, 2005, while loading the vehicle, attract the provisions of Section 3 of the Employees Compensation Act, 1923 and, accordingly, it was held that the accident to the deceased Nazir Ahmad Bohru has arisen out of and in the course of his employment. The learned Commissioner, while holding that the insurance policy of the Tipper in question revealed that the policy was drawn in the name of Non-Applicant Mohammad Ramzan Rather c/o Non-Applicant Ghulam Rasool Sheikh, as such, the Non-Applicant Ghulam Rasool Sheikh is the ‘de facto’ owner of the vehicle, whereas the Non-Applicant Mohammad Ramzan Rather is the ‘de jure’ owner of the offending vehicle. 8. After hearing the arguments of the parties, the learned Commissioner observed that the deceased workman-Nazir Ahmad Bohru was working as Loader in the Stone Quarry of one Ghulam Rasool Sheikh and, while loading the stones in vehicle No. JKE-4737 on 31st of August, 2005, he was hit by a stone on his back, thereby causing injuries to the spinal cord of the workman, which ultimately resulted into his death. 9. After accepting the age of the deceased as 35 years and his monthly income as Rs. 4500/-, it was held that the claimants were entitled to a total compensation of Rs.3,94,120/- and the offending vehicle bearing registration No. JKE-4737, involved in the fatal accident of the deceased having been insured in the name of Non-Applicant by Appellant-Insurance Company, as such, it is liable to make payment to the legal dependents of the deceased workman. 10. Learned Counsel for the Appellant has argued that the Stone Quarry of Respondent-Ghulam Rasool Sheikh, with whom the deceased was working as Workman, was insured with the Appellant-Insurance Company and also the vehicle in the name of Respondent-Mohammad Ramzan Rather was also insured with the Appellant-Insurance Company. 10. Learned Counsel for the Appellant has argued that the Stone Quarry of Respondent-Ghulam Rasool Sheikh, with whom the deceased was working as Workman, was insured with the Appellant-Insurance Company and also the vehicle in the name of Respondent-Mohammad Ramzan Rather was also insured with the Appellant-Insurance Company. The learned Counsel for the Appellant has further argued that the Appellant-Insurance Company, on the death of the deceased, a workman with the insured Stone Quarry of Respondent-Ghulam Rasool Sheikh, had been paid an amount of Rs.99,100/-, which was received by Respondent-Fareeda Nazir, wife of the deceased workman and that the claim disbursement voucher had been placed on the record of the proceedings of the learned Commissioner as Annexure-B to the Statement of Objections; that the learned Commissioner, knowingly that the death of the workman had already been compensated under the policy of insurance taken by the Respondent-Ghulam Rasool Sheikh for his Stone Quarry, granted further compensation through the medium of the impugned award showing him as a workman as Loader with the vehicle which had been insured by the Appellant-Insurance Company in the name of Mohammad Ramzan Rather c/o Ghulam Rasool Sheikh, as such, the Appellant-Insurance Company could not have been made to make payment of compensation twice, once showing the deceased as workman with the Stone Quarry and then, showing him as a workman with the offending vehicle insured in the name of Respondent-Mohammad Ramzan Rather and accepting it by the learned Commissioner as only being in the name of Respondent-Mohammad Ramzan Rather and owned by the Stone Quarry owner-Ghulam Rasool Sheikh. It was, thus, prayed that, for this reason of making the Insurance-Company liable twice for the death of the workman, being impermissible, the impugned award be set aside by allowing the Appeal of the Appellant. 11. Learned Counsel for the Respondent-Fareeda, as the other claimant-Abdul Aziz Bohru expired during the pendency of this appeal and was deleted from the array of Respondents, on the other hand, argued that the learned Commissioner has decided the case on the basis of the evidence lead by the claimants only and that the Appellant, as Respondent before the learned Commissioner, did not lead any evidence with regard to the points raised through the medium of this appeal, as such, the Appellant-Insurance Company is estopped from raising this question in this appeal, which they have not raised before the learned Commissioner. He has further argued that in absence of any substantial question of law, the instant appeal is not maintainable and is liable to be dismissed, upholding the impugned award. 12. Heard learned Counsel for the parties, perused the pleadings on record and considered the matter. 13. On the basis of the pleadings and the arguments put forth by both the sides, it is an admitted fact that the deceased Nazir Ahmad Bohru had been working with the Respondent-Ghulam Rasool Sheikh on his Stone Quarry at Athwajan as a Workman and, while loading the vehicle (Tipper) with the stones, he met the accident when one of the stones hit him causing injuries to his spinal cord resulting into his death. The Stone Quarry, in the name of Respondent-Ghulam Rasool Sheikh, and the offending vehicle (Tipper) in the name of Respondent-Mohammad Ramzan Rather, both were insured with the Appellant-Insurance Company. The Insurance Company had, at its own, compensated the legal heirs of the deceased by making a payment of Rs. 99,100/- as compensation in terms of the insurance contract between the Appellant-insurer and the Respondent-Ghulam Rasool Sheikh insured. Subsequently, the legal heirs of the deceased filed a claim Petition before the learned Commissioner, claiming compensation in terms of the Employees Compensation Act, 1923 and the learned Commissioner, again, while accepting the deceased as workman with the Respondent-Ghulam Rasool Sheikh, held the legal heirs of the deceased entitled to compensation on the basis of a contract of insurance by the Appellant-Insurance Company with the Respondent-Mohammad Ramzan Rather, as the workman had suffered injuries resulting into his death while loading stones on the tipper insured with the Appellant-Insurance Company by the said Respondent-Mohammad Ramzan Rather c/o Respondent-Ghulam Rasool Sheikh. 14. It appears that the learned Commissioner decided the case, under an assumption that the vehicle, though insured in the name of Respondent-Mohammad Ramzan Rather, actually belonged to Respondent-Ghulam Rasool Sheikh, the owner of the Stone Quarry. In absence of any evidence in this respect, this presumption by the learned Commissioner, without any foundational facts, seems to be arbitrary. The legal heirs of the deceased could have filed a claim Petition in terms of the Motor Vehicles Act against the driver, owner and insurer of the offending vehicle (Tipper), instead of filing a claim Petition under the provisions of the Employees Compensation Act, 1923. 15. The legal heirs of the deceased could have filed a claim Petition in terms of the Motor Vehicles Act against the driver, owner and insurer of the offending vehicle (Tipper), instead of filing a claim Petition under the provisions of the Employees Compensation Act, 1923. 15. It is also evident that the learned Commissioner has overlooked the payment made by the Appellant-Insurance Company as an insurer of the Stone Quarry of Respondent-Ghulam Rasool Sheikh, therefore, the Appellant-Insurance Company cannot be made to have paid the compensation twice on the death of the deceased workman. So much so, even the learned Commissioner has not adjusted the amount which had been paid earlier to the legal heir(s) of the deceased workman by the Appellant-Insurance Company at its own. The learned Commissioner appears to have committed an error by presuming that the offending vehicle insured in the name of Respondent-Mohammad Ramzan Rather, in absence of any evidence, was actually owned by Respondent-Ghulam Rasool Sheikh, owner of the Stone Quarry where the deceased workman was working. The contract of insurance, in view of the insuring of a motor vehicle (Tipper), in the case on hand, could not have been made the basis for paying compensation under the Workmen’s Compensation Act, as the deceased was not shown to have been acknowledged as a worker by the owner or driver of the offending vehicle, but was a worker of the Respondent-Ghulam Rasool Sheikh insured for the quarry/mine of stones. The learned Commissioner has, thus, committed an error, both on facts as well as law, to grant compensation in respect of a claim lodged by the legal heirs of the deceased under the Employees Compensation Act, 1923. 16. For the foregoing reasons and observations made hereinabove, I find merit in the instant appeal. The same is, accordingly, allowed and the impugned award dated 8th of December, 2012 passed by the learned Commissioner is hereby set aside. The legal heirs of the deceased, however, shall be entitled to work out the remedy, if available under any other Statute, for seeking redressal of their grievance(s), if any, and, in the event the said course is permissible and adopted by the legal heirs of the deceased, the time consumed in this litigation shall not come in their way in the shape of law of limitation for filing such a claim/ application. 17. 17. The appeal is, accordingly, disposed of as allowed, along with connected CM(s). The amount of award deposited, if any, shall be remitted back to the Appellant under rules. 18. Scanned record received from the Authority below be sent down, along with a copy of this Judgment.