( 1 ) THE appellants applicants who are the heirs of the deceased Chana Hira had field workmens compensation case No. 21 of 1977 in the Court of the Commissioner for the Workmens Compensation Act Kutch at Bhuj (hereinafter referred to as the Commissioner) against one Shah Karsan Lakha for compensation of Rs. 19,200. 00 for the death of Chana Hira. The brief facts leading to the present appeal are as under:deceased Chana Hira Jesar was employed by the opponent who had gone with the opponents party in Truck No. GTY-2825 on 22-5-1977 from Bhachau to Kharoi village. The opponent was present at the time of the incident near by the truck where the deceased was discharging his duties. At that time all of sudden a serpent came out and bit the deceased at the left foot. It is the cause of the appellants that the opponent though he was personally present there did not take care for speedy action for medical treatment. They stated that the opponent did not take the deceased immediately to the hospital and waited till the truck was loaded and only after the truck was fully loaded the deceased was removed to Bhachau Hospital. From Bhachau the deceased was removed to Bhuj District Hospital where he died during the treat- ment on 23-5-1977. According to the applicant the death of the deceased took place on account of gross negligence of the opponent. According to the applicants the deceased was earning Rs. 300. 00 per month and as he was on duty the applicants appellants filed the said application to recover the sum of Rs. 19 200 by way of compensation.

( 2 ) ). The opponent filed written Statement Ex. 12 and denied that the deceased Chana Hira Jesar was his servant and as per his order had gone with the truck No. GTY 2825 on 22-5-1977 and that the goods were being loaded in his presence. He denied that the deceased died as a result of his negligence. He also denied the other allegations and mainly contended that the deceased was not the workman and he was not the employee of the deponent and therefore the applicants were not entitled to any compensation under the Workmens Compensation Act.

( 3 ) ). In view of the various contentions raised by the parties the Commissioner framed issues at Ex. 13 and ultimately came to the conclusion that the deceased Chana Hira was in the employment of the opponent. However the Commissioner came to the conclusion that the deceased was not bitten by the snake while the deceased was on duty and that the deceased did not expire while he was discharging duty in the employment of the opponent and ultimately the Commissioner rejected the application of the appellants by his judgment and award dated 7 Being aggrieved by the said judgment and Award of the Commissioner the appellants have filed this First Appeal.

( 4 ) ). The learned Counsel Mr. D. D. Vyas for the appellants has mainly contended that in view of the finding of the Commissioner that the deceased was in the employment of the opponent the Commissioner was not right in coming to the conclusion that the deceased was not on duty at the relevant time and therefore on this aspect of the matter the learned Counsel has taken me through the entire evidence on the record of the case and has submitted that in view of the evidence on the record of the case it is amply proved that the serpent bit Chana while he was loading the truck and therefore as per the definition in section 3 of the Act it should have been held that the deceased had met with an incident arising out of and in the course of his employment with the opponent and therefore the applicants were entitled to get the compensation with interest and penalty.

( 5 ) ). Mr. P. V. Hathi learned Counsel appearing for the opponent on the other hand has contended that the finding of the learned Commissioner is correct and the application has been rightly rejected by the Commissioner and after considering the entire evidence on record this Court should not disturb the finding of fact and the appeal