1. ADMIT.

2. The parties have locked horns on the issue, whether Dhruv Thapa, deceased, came within the term, “workman” as defined in Workmen's Compensation, Act 1923. Smt. Poonam Devi and Master Neeraj, respondents no.1 and 2 moved an application under Workmen's Compensation Act, 1923, before the Commissioner on 17th April, 1995. It is averred that Dhruv Thapa, their husband and father respectively, aged about 35 years, a workman was employed as Chowkidar since 1987 by the present petitioner/appellant, received personal injury by accident arising out of and in the course of his employment resulting in his death on 10th June, 1993. It is explained that cause of injury was that when he was on duty on the premises of the appellant, some accident took place within the premises of the appellant. Again the cause of injury is best known to the appellant. The dead body was taken to Safdarjang Hospital and its autopsy was got conducted. Dhruv Thapa was getting Rs.1,000/- per month. Notice requiring the appellant to pay compensation was sent but it did not ring the bell. In their petition, the respondents have claimed Rs.78,824/- (Rs.400/197.06).

3. The appellant contested the above said petition. It is objected that Dhruv Thapa was employed as a part time domestic Chowkidar to work at W-110, Greater Kailash-II, New Delhi. He was getting a salary of Rs.650/- per month for about five years until his death. It is explained that Dhruv Thapa was a personal employee of the respondent and was neither a workman within the definition of the Workmen's Compensation Act, 1923 nor was he employed in any of the capacities and in employment as mentioned in the said Act. The maintainability of the said application as well as the jurisdiction of the Tribunal have been called into question. It is also denied that Dhruv Thapa died on duty in an accident. Again, no accident took place at appellant's residence at all. It is, however, explained that Dhruv Thapa was dead drunk on 9th June, 1993 and did not attend his duty. On 10th June, 1993 he was found dead on the lane outside the house of the appellant. The police also investigated this case. Although, the appellant was under no obligation to the applicants, yet, on humanitarian grounds after death of Thapa, he extended help in kind and money to the applicants upto Rs.6,000/-. Reply in response to the notice was given but it was received back with the report that the addressee was not available.

4. In the rejoinder, the respondents denied the case of the appellant and reiterated their above mentioned claims. On the pleadings of the parties, the following issues were framed :

i)Whether the application discloses any cause of action for invoking jurisdiction of this Hon'ble Court ?

ii)In what amount the compensation be awarded ?

iii)Relief.

5. After hearing counsel for the parties, learned Commissioner Workmen Compensation vide its order, dated 16th August, 2004 gave award in favour of the respondent and against the appellant in the sum of Rs.78,824/- along with interest at the rate of 6% per annum from the date of filing the application dated 6th February, 1994 onwards. While deciding issue no.1, the Commissioner gave the following finding :

“From the record I find that the deceased was doing his duty as Chowkidar for twelvehours i.e. From 10.00 pm to 6.00 am to guard his house and also look after the security work of transport business. Therefore, the legal heirs are entitled to get compensation.”

6. The learned counsel for the appellant submitted that finding given by the Commissioner, “and also look after the security work of transport business” is not based on any evidence. He argued that the learned Commissioner has drawn ingenuous inferences based on speculation and flights of fancy. On the other hand the learned counsel for the respondents stressed that the judgment in question fully supports his case.

7. After having subjected the evidence to a closet scrutiny and after