A.S. CHANDURKAR, J.

1. This appeal filed under Section 30 of the Employees Compensation Act, 1923 (for short, the said Act) has been heard on the following substantial questions of law:

(1) Whether the claimants are entitled to grant of compensation under Sections 3 and 4 of the Employees Compensation Act, 1923, in view of the fact that the insurance policy covered the risk of use of the trailer and trolley and the accident occurred when the said vehicle was not in use?

(2) If it is found that the appellant is liable to satisfy the liability, whether the amount of compensation as awarded is just and proper?

2. The facts in brief are that it is the case of respondent Nos.1 and 2 - original claimants that their son Govinda was engaged in doing labour work. On 5-5-2005 Govinda had gone along with a tractor - trolley which was owned by respondent No.3 herein and insured with the appellant for the purposes of bringing sand in the trolley. The vehicle was taken near a stream where said Govinda along with other labourers started loading sand from the bank of the stream. In that process part of the bank collapsed and Govinda was buried under the debris. After making efforts Govinda was removed from beneath the debris but he had succumbed to the injuries sustained by him. On that basis the parents of Govinda filed an application under Section 4 of the said Act seeking compensation under provisions of the said Act.

Written statement was filed by the owner of the vehicle in which it was stated that Govinda was being paid Rs. 50/- per day as labour charges. The sand in question was required for repairing the house of the owner of the vehicle. As the said vehicle was insured it was the liability of the Insurance Company to satisfy the claim.

In the written statement filed by the Insurance Company its liability was denied. It was pleaded that Govinda expired on account of the sudden collapse of the bank of the stream. The insured vehicle was not connected with the said incident and it was standing idle on the bank of the stream. Since the insurance policy in question was related with the use of the motor vehicle and the motor vehicle was stationary when the incident occurred, it was the liability of the owner to pay compensation. It was thus pleaded that the Insurance Company was liable to be exonerated.

3. The father of the victim examined himself at Exhibit32 and deposed in support of the claim application. In his crossexamination he stated that he was not present when the accident occurred. He admitted that the tractor-trolley was stationary when the accident occurred while the sand was being removed. The owner of the tractor - trolley examined himself at Exhibit-31. He admitted engagement of Govinda as a labourer and payment of charges of Rs. 50/- per day. In his cross-examination he admitted that the insurance policy was a third party insurance policy and there was no accident of the motor vehicle caused resulting in the death of Govinda.

4. After considering the aforesaid evidence, the learned Commissioner recorded a finding that the accident occurred when sand was being filled in the tractor - trolley and that the Insurance Company was liable to satisfy the claim for compensation. On that basis the application was allowed holding the owner and Insurance Company liable to pay the amount of Rs. 1,70,617.50/-. The amount of penalty was directed to be paid by the owner and the Insurance Company was held liable to pay interest on the amount of compensation. Being aggrieved this appeal has been filed.

5. Shri H. N. Verma, learned Counsel for the appellant submitted that it was an admitted fact that the tractor - trolley was stationary when sand was being filled in the trolley. In the absence of the vehicle being used coupled with the fact that the Insurance Policy was in respect of any accident caused during the use of the motor vehicle, there was no connection between the death of Govinda and the use of the tractor - trolley. He submitte