Milap Chandra Jain, J.
1. This appeal has been filed under Section 30 of the Workmen's Compensation Act (hereinafter to be called 'the Act') against the order of the Workmen's Compensation Commissioner, Sriganganagar, dated September 30, 1988, awarding compensation, interest and penalty to the tune of Rs. 37,831/-, Rs. 4,727/- and Rs. 9,457/- respectively, in all Rs. 52,015/-. The facts of the case giving rise to this appeal may be summarised thus.
2. On April 24, 1987, the respondent filed a petition before the Workmen's Compensation Commissioner, Sriganganagar, claiming compensation to the tune of Rs. 44,274/- with the allegations, in short, as follows. Since the year 1984, her son Shiv Kumar was in the employment of the Nav Bharat Rice and General Mills, Industrial Area, Hanumangaih Junction, (in short 'the mill'), appellant'herein. In the morning of July 30, 1986,. he was sent for collecting labourers from the village Makkasar on the motor cycle of the mill along with Prithvi. While going to Makkasar, he met with an accident at about 6 a.m. As a result thereof, he received several injuries. He was immediately taken to Narang Hospital, Khunja Industrial Area, Hanumangaih and there from to the Government Hospital, Hanumangaih Town. He died there the same day. His date of birth was 1.1.1964 and his wages were Rs. 500/- per month. He was not married. The petitioner was entirely dependent on him. Notice could not be served upon the opposite party in time because of her illiteracy and old age. In its reply, the mill admitted that Shiv Kumar was employed with it as a chowkidar, he was on duty till 6 a.m. on 30.7.1986 and he was brought to the Government Hospital, Hanumangarh, by Prithvi and Supervisor Shish Ram in an injured condition. The remaining allegations of the petition were denied. It has further been averred that his wages were Rs. 430/- per month and not Rs. 500/- per month, the Manager of the mill, Mai Chand, came to know about the accident at about 10 a.m. and he attended the injured Shiv Kumar at the Government Hospital, Hanumangrh Town, at 10 a.m.
3. On December 11, 1987, the following issues were framed:
1 vk;k e`rd f'kodqekj vizkFkhZ ds fu;kstu esa 500@& ekfld osru ij jgk gS!
2 vk;k e`rd f'kodqekj dh e`;q fu;kstu esa ,oa fu;kstu ds nkSjku dk;Z djrs gq, gqbZ gS!
3 vk;k e`rd ds vkkhr nkos esa & us okf'kZr eqvkotk ikus dh vf/kdkjh gS !
4 vU; vuqlks'k!
4. The petitioner-respondent examined Dr. Ashok Narang, PW 1, Surendra Kumar, PW 2, Prithvi, PW 3 and herself as PW 4. The non-petitioner-appellant examined Shish Ram, DW 1, Duli Chand, DW 2 and Satish Kumar, DW 3. After hearing the parties, the learned Workmen's Compensation Commissioner, Sriganganagar, decided all the issues in her favour and awarded compensation as said above.
5. It has been contended by the learned Counsel for the appellant that the learned Workmen's Compensation Commissioner has seriously erred to hold that the deceased Shiv Kumar was sent by the Manager of the appellant mill to bring labourers from Makkasar, the motor cycle belonged to the appellant mill and the workman Shiv Kumar died in the course of his employment. He also contended that the Workmen's Compensation Commissioner has not properly and correctly appreciated the evidence on record, there is no evidence on record to prove that the deceased was sent by the said Manager to bring labourers from Makkasar and there was no necessity of the extra labourers for the appellant mill as a good number of extra labourers were already working there. He also contended that admittedly deceased Shiv Kumar was one of the chowkidars of the mill and it was not a part of his duty to bring labourers from nearby village, the most material witness, Prithvi, PW 3, has not supported the petitioner's case, he has, on the contrary, said that he was going to bring milk and the certificate of the Transport Officer, Sriganganagar, has been relied upon without getting it proved. He relied upon Chunilal V. Mehta & Sons Ltd. v. Century Spinning and . AIR 1962 SC 1314; 1980 RLW 412; Jwali v. Baku Lal AIR 1958 Allahabad 564; Rimmalapudi Subba Rao v. Noony Veeraju AIR 1951 Mad 969; Chowgule & Co. (P) Ltd. v. Felicidade Rodrigues 1971 ACJ 92 (JC, Goa, Daman & Diu); U Yan Shin v. Mae Sein AIR 1940 Rangoon 18; Mac Kinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mohammad Issak 1969 ACJ 422 (SC); Commissioners for Port of Calcutta v. Kaniz. Fatema AIR 1961 Cal 310 and Saurashtra Salt Manufacturing Co. v. Bai Valu Raja AIR 1958 SC 881.
6. In reply, it has been contended by the learned Counsel for the petitioner-respondent that no substantial question of law is involved in this appeal, the findings of the Workmen's Compensation Commissioner, namely, deceased Shiv Kumar was sent by the Manager of the mill to Makkasar on the motor cycle of the mill along with Prithvi, PW 3, he met with an accident and he died during the course and in the employment of the appellant mill are findings of fact. He also contended that the provisions of the Evidence Act do not apply in these proceedings and the Commissioner for Workmen's Compensation has properly and correctly appreciated the evidence on record. He further contended that the accident occurred in the way in between the mill and the village Makkasar and not in the way in between the mill and his house, the deceased was going on the motor cycle No. RRC 40 registered in the name of the mill, co-workman Prithvi, PW 3, was with him at the time of the accident and these facts strongly corroborate the petitioner's case. He relied upon 1983 RLW 17 1985 (1) WLN 455, Mankunwarbai v. Kusumlata-bai 1989 ACJ 86 (MP) and Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mohammad Issak 1969 ACJ 422 (SC).
7. It is the admitted case of the parties that the deceased Shiv Kumar was in the employment of the appellant mill, he was going on the motor cycle No. RRC 40, Prithvi, PW 3, was sitting on the pillion, he met with an accident on Hanumangarh-Makkasar Road near Housing Board Colony at about 6 a.m. on July 30, 1986, he was seriously injured, he was immediately taken to the Narang Hospital, there from to the Government Hospital, Hanumangarh Town and there he succumbed to his injuries the same day. It is also not disputed that the deceased Shiv Kumar used to come to the appellant mill on his bicycle and the place of accident did not lie on the way in between the mill and his house.
8. The first question for consideration in this appeal is whether the deceased Shiv Kumar was sent by the Manager of the appellant mill, Mai Chand, to the village Makkasar to bring labourers for the appellant mill. In its written arguments, paper No. 85/98, dated 30.9.1988, the appellant has stated that the answer of this question mainly depends on the question as to whom the said motor cycle No. RRC 40 belonged. The learned Commissioner for Workmen's Compensation has held that this motor cycle belonged to the appellant mill. The Commissioner for Workmen's Compensation issued notice to the appellant mill for 27.5.1987 and the latter filed its initial reply, paper No. 12/3, on its letter-head. In this reply, it has not been denied that the said motor cycle did not belong to the mill. Filing of this reply, paper No. 12/3, is admitted by the appellant mill in its subsequent application, paper No. 14/3, dated 10.6.1987. In her written arguments, the claimant-respondent has stated at pages 12-13 that despite her best efforts she could not earlier obtain a certificate from the tianspoit authority that the said motor cycle No. RRC 40 belonged to the appellant mill and she has now been able to obtain it and it is being enclosed with the written arguments. The certificate, paper No. 84/3, was enclosed with the written arguments. Written arguments, page Nos. 61-83, show that a copy thereof was duly received by the learned Counsel for the appellant mill. The appellant mill also filed its written arguments, paper Nos. 85-98. It is stated at page 91 thereof that the claimant could obtain a certificate from the transport department to show that the said motor cycle belonged to the appellant mill, if she wanted to do so. Nothing has been said either in the written arguments filed before the Workmen's Compensation Commissioner or in the memorandum of appeal filed in this Court against the said certificate, paper No. 84/3, issued by the District Transport Officer, Sriganganagar, to the effect that the said motor cycle No. RRC 40 is registered in the name of the appellant mill. No suggestion was put in the cross-examination of Surendra Kumar, PW 2 and Prithvi, PW 3, that the said motor cycle No. RRC 40 was not registered in the name of the appellant mill. The petitioner, Rukma Devi, PW 4, has disclosed in her cross-examination that she enquired about the motor cycle from Prithvi, PW 3 and the latter told her that the motor cycle belonged to the Seth (owner of the appellant mill). No suggestion was put to her that the motor cycle did not belong to the appellant mill. Shish Ram, DW 1 and Duli Chand, DW 2, have simply stated that the motor cycle No. RRC 40 was not in the appellant mill. They did not say that this motor cycle did not belong to the appellant mill. Satish Kumar, DW 3, has not said anything in his statement about this motor cycle. Shish Ram, DW 1, has come on record that the employees of the appellant mill frequently used and use the motor cycle of the mill in connection with the affairs of the mill. From these facts and circumstances, it is well established that the said motor cycle No. RRC 40 belonged to the appellant mill.
9. The second question for consideration is for what purpose Shiv Kumar left the mill. The petitioner's case is that he was sent by the Manager Mai Chand on the mill's motor cycle for fetching labourers from the village Makkasar. Prithvi, PW 3, says that Mai Chand sent Shiv Kumar. He did not tell the purpose for which Mai Chand sent Shiv Kumar. He says that Shiv Kumar told him that milk was to be brought. On this statement, great emphasis was laid by the learned Counsel for the appellant. This part of the statement of Prithvi, PW 3, is not correct. If the deceased Shiv Kumar would have gone to bring milk, some utensil would have been found with him. There is nothing on the record that an empty utensil was found at the place of occurrence. It seems highly improbable that two employees were sent on a motor cycle to bring milk, particulaily when there was a tea-stall near the mill. Surendra Kumar, PW 2, has deposed that on seeing the accident, he immediately came to the place of accident, his neighbour Sagar Mai who was also an employee of the mill came there and he enquired from Prithvi, PW 3, as to whether they were going on the motor cycle of the mill and Prithvi, PW 3, replied that they were going to bring labourers from the village Makkasar. Prithvi, PW 3, admits that Sagar Mai came at the place of the accident immediately after the accident. There is no good reason to disbelieve the said statement of Surendra Kumar, PW 2. Prithvi, PW 3, has obliged the mill, being its employee. Admittedly, Mai Chand has not been produced to deny the fact that he asked the deceased Shiv Kumar to bring labourers from the village Makkasar. It is not the case of the mill in its lengthy reply that the deceased Shiv Kumar could refuse to comply with the said order of the Manager Mai Chand.
10. Satish Kumar, DW 3, has been produced to prove that trucks of paddy did not arrive in the mill and so there was no necessity of extra labourers. Shish Ram, DW 1 and Duli Chand, DW 2, have also deposed so. Account-books, Exhs. D/1 to D/3, were also produced. Averments of the petition regarding arrival of tracks full of paddy have not at all been denied by the mill even in its lengthy reply, paper Nos. 17-22/3. No amount of evidence can be looked upon a plea which was not put forward.
11. Admittedly, the place of accident was not in between the mill and the quarter of the deceased Shiv Kumar and, on the contrary, it was on the way of the village Makkasar and the mill.
12. Prithvi, PW 3, has also deposed that the Manager of the mill, Mai Chand, was standing near the deceased Shiv Kumar when he started the motor cycle and he (Prithvi) accompanied him (Shiv Kumar) from inside the mill. All these facts and circumstances leave no manner of doubt that the deceased Shiv Kumar was sent on the motor cycle of the mill to bring labourers from the nearby village Makkasar by its Manager, Mai Chand, the said accident occurred while he was going to Makkasar and he received injuries and died the same day. Thus the deceased Shiv Kumar died as a result of the accident arising out of and in the course of his employment. The appellant mill is liable under Section 3 of the Act to pay compensation.
13. The claim petition cannot be dismissed on the ground that insurance company has not been impleaded as a party. Reference of K.P. Kurian v. Hindustan Shipping Co. 1974 ACJ 493 (Kerala) and G. Sreedhan v. Hindustan Ideal Insurance Co. Ltd. 1976 Lab IC 732, may be made here. It may also be mentioned here that no such objection has been taken by the mill in its lengthy reply. It does not even appear from the reply that either the mill or the motor cycle was got insured.
14. The amount of compensation has rightly been calculated by the learned Commissioner at the admitted monthly wages at the rate of Rs. 430/-. There is no ground for reducing the amount of compensation, interest and penalty.
15. It may also be mentioned here that no substantial question of law is involved in this appeal.
16. Consequently, the appeal is dismissed with costs. The amount lying deposited with the Workmen's Compensation Commissioner, Sriganganagar, will be paid to the respondent within a month of the receipt of a copy of this order, in accordance with law. Appeal dismissed.