1. Challenge in this appeal by original respondent no.2, The Oriental Insurance Company Ltd. is to the judgment and award passed in W.C.A.No.28 of 2005 by the learned Jt.Civil Judge, S.D. 2 on 26/06/2009, by which the appellant was directed to deposit an amount of Rs.3,26,140/alongwith interest @ 12% p.a., from 22/05/2003 i.e. after one month of incident till its realization.

2. Admit. By consent of the parties, heard finally at this stage.

3. Such of the facts as are necessary for the decision in this appeal can be summarized as :

ShahuJadhavar was serving with Terna Shetkari Sahakari Sakhar Karkhana Ltd., Terna Nagar, Dhoki, Tal. And Dist.Osmanabad as a watchman. (hereinafter referred to as “sakhar karkhana”). Respondent no.1 is wife of Shahu while respondents no. 2 to 4 are his sons, respondent no.5 is his daughter, while respondent no.6 is his mother. On 22/04/2003, Shahu Jadhavar was supposed to be on duty from 3.00 a.m. to 11.00 a.m. He was r/o.village Tadgaon, Tal.Kallam, which is at the distance of about 21kms from Sakhar Karkhana. Shahu left his residence on his motorbike MH13C6663, around 11.00 p.m. It is stated that he met with an accident with an unknown vehicle in the vicinity of village Dhorala, in which he succumbed to injuries on the spot. Deceased Shahu was residing alongwith his family members at village Tadgaon, Tal.Kallam as no service quarter was provided to him. An accident was reported in the police station by one Murlidhar Dattoba and FIR came to be registered vide CR No. 45/2003. Sakhar Karkhana /respondent no.7 is insured under Workmen’s Compensation Act before the Commissioner. On notice of the application W.C.A.No.28/2005, respondent no.7 and the present appellant appeared. The claim of the respondents no.1 to 6 was contested by the respondent no.7 by filing written statement at Exh. 16.

The authorized person, whose affidavit was filed on behalf of the sakhar karkhana, has admitted that deceased Shahu was permanent employee of their factory. They have also not disputed that deceased Shahu met with an accident while coming to sugar factory on his own motorcycle. But according to respondent no.7, there was no nexus of the said accident with the employment of the deceased & hence it is contended that it can not be said that the deceased died out of and during the course of employment. In the alternate, it is alleged that if the respondents no.1 to 6 are held liable for compensation, then the appellant should be held liable for the said compensation as they have taken General Insurance Policy of their employees.

4. Present appellant has also contested the said claim by filing separate written statement at Exh.19. Amongst other grounds, they have also disputed the relationship between the deceased & respondent no.7. They have specifically disputed that even if it is proved that the deceased was in the employment of the respondent no.7, but considering the spot of accident, it can not be said that the accident took place during the course of employment as the deceased died far away from the place than the place of his employment. Therefore the risk of death of such employee has not been covered under the policy. It is prayed that the claim being devoid of any merits, liable to be rejected against them.

5. Perusal of the record and proceedings received from the Lower Court shows that the learned Lower Court has framed the issues at Exh.21 and the parties were put for trial. Record and proceeding further shows that during the proceeding before the Lower Court, respondent no.1 examined herself and tendered the relevant documents in respect of FIR registered at Crime No.45/2003. As against this, respondent no.7 examined one Sarjerao Maruti Gaikwad and tendered extract of monthly attendance register for the month of April 2003. Copy of the Insurance Policy was also produced at Exh. 41 and it is not under dispute that it is general insurance policy of the employees of respondent no.7 sakhar karkhan