( 1 ) THE appellant-Insurance Company has challenged in this appeal, the impugned judgment and award dated 1st February, 2005 passed by the learned Workmens Compensation Commissioner, Labour Court, Kachchh in Workmens Compensation (Fatal) No. 12 of 2003 filed by the respondents- claimants where by the learned Commissioner allowed the application of the claimants and ordered the appellant-Insurance Company to pay Rs. 4,19,840. 00 (Rupees Four lakh nineteen thousand eight hundred and forty only) to the claimants which may be deposited within 30 days from the date of the order along with interest at the rate of 12% per annum till the realisation from the date of the accident. The appellant-Insurance Company was also ordered to pay Rs. 1,000. 00 for funeral charges, Rs. 2,100. 00 for Court fee stamps and Rs. 500. 00 towards costs. The respondent No. 1-employer was ordered to deposit penalty of rs. 2,000. 00 within 30 days from the date of the order. The appellant-Insurance company has challenged the impugned judgment and award passed by the learned commissioner in this appeal which is filed under Sec. 30 of the Workmens compensation Act.

( 2 ) INITIALLY, in this appeal, substantial questions of law were not framed. Therefore, Civil Application No. 6778 of 2005 was filed in this appeal and following three questions were framed as substantial questions of law : (A) Whether an accident that takes place on a public road while the deceased employee is on his way to his work-place, can be said to fall under sec. 3 of the Workmens Compensation Act, 1923? (B) Whether in light of the ruling of the Honble Supreme Court of India in the case of Francis De Costa, reported in 1996 (6) SCC 1, the case of the deceased workman who died in a vehicular accident while on his way to his work-place, can be said to fall within Sec. 3 of the workmens Compensation Act, 1923? (C) Whether in absence of cogent and reliable evidence to show the income of the deceased, other than the income certificate issued by the respondent no. 6 herein, the Commissioner of Workmens Compensation was right in holding that the monthly income of the deceased was Rs. 4,000/-? the said application was granted today.

( 3 ) OUT of the aforesaid three questions, the third and last question cannot be said to be a question of law, much less, substantial question of law. It is a pure question of fact or at the most, it is a mixed question of fact. The remaining two questions are, in fact, on one point i. e. Whether the deceased employee died while on duty or not and his case would fall under Sec. 3 of the Workmens Compensation Act or not.

( 4 ) LEARNED Counsel Shri Shalin Mehta for the appellant-Insurance Company vehemently submitted that in this case, the learned Commissioner has wrongly allowed the claim application of the claimants by holding that the deceased died in an accident while on duty. Relying on two decisions of the Honble Supreme court : Saurashtra Salt Manufacturing Co. v. Bai Valu Raja and Ors. , reported in AIR 1958 SC 881 and : Regional Director, E. S. L Corporation and Anr. v. Francis De Costa and Anr. , reported in 1996 (6) SCC 1, Mr. Mehta submitted that in the instant case, it cannot be said that the deceased died while on duty. Therefore, the learned Commissioner committed grave error in allowing the claim petition of the claimants.

( 5 ) BEFORE appreciating the aforesaid contentions, few relevant facts of this case are required to be stated which are as under.

( 6 ) IT is the case of the claimants that deceased Jivram Jethabhai Bambhania was serving as block-maker with the respondent No. 1-Vinod Narshi Kataria (employer) for which he was paid Rs. 4,000. 00 per month. On the fateful day of accident i. e. on 7th December, 2001 at about 10-00 a. m. employer of deceased jivram - Shri Vinod Narshi Kataria came on his Scooter No. GJ/12/1a2/9120 at the house of the deceased and took the deceased on his scooter for immediate completion of his work at