1. Present appellant, who is the original opponent No. 2 in Workmen Compensation Application No. 8 of 1999 for compensation under the Workmen's Compensation Act (hereinafter referred to as “the Act” for brevity) has challenged the judgment and award dated 07.07.2005 passed by the learned Workmen Compensation Commissioner directing the appellant herein – opponent No. 2 and the original opponent No. 3 – the Oriental Insurance Company to pay a sum of Rs.1,97,955/- to the applicant within 30 days from the date of receipt of the order. The present appellant was also directed to pay the interest @ 12% per annum from the date of death of the employee and also to deposit 50% of the awarded amount i.e. 98,978/- towards penalty with the Government, within 30 days of the receipt of the order together with costs of application of Rs.1,000/-.

2. Short facts of the case may be referred as under:

2.1 An application under the Act was filed by the applicant – wife of the deceased praying for compensation of Rs.2,72,500/- with interest @ 18% per annum and penalty on account of sad demise of her husband – Poonambhai Hirabhai on 13.02.1998, while he was working as an employee, as Sweeper, with the opponent Nos. 1 and 2 therein. As per the averments made by the applicant, on 25.01.1998, at about 2:30 p.m., her husband, while on duty, fell down in 30ft. Deep cellar and hence, he was shifted to V.S. Hospital for treatment and during the course of treatment, he died on 13.02.1998. Therefore, she has prayed for the compensation, as aforesaid.

2.2 On receiving the notice issued by the learned Commissioner, no written statement was filed by the original opponent No. 1. The opponent No. 2, the appellant herein, filed written statement vide exh. 7 denying the averments made by the applicant in her application, except which were specifically admitted. It was contended that deceased was working on daily wages and was paid Rs.40/- per day. It was not admitted that on the day of accident i.e. 25.01.1998, he was working as a Sweeper but, the deceased was working as a daily wager and had fell down and died. It was also not admitted that the deceased was an employee of this opponent and therefore, he was liable to pay any compensation. That, the insurance of the workers was taken by this opponent with the Oriental Insurance Company Ltd., the opponent No. 3 and therefore, the liability of paying compensation would be of the insurance company. That, first notice was issued by the applicant and it was replied on 17.06.1998. That, no liability of this opponent can be fastened by the Court and accordingly, it was requested to dismiss the application.

2.3 The opponent No. 3 - insurance company filed its written statement vide exh. 8 denying the contents of the application. That, the deceased was employed by the opponent No. 2 and he cannot be considered an an employee of the opponent No. 1 and therefore, the opponent No. 1 is liable to pay the compensation and the opponent No. 3 is not liable to indemnify the opponent No. 2. It was not admitted that a notice under Section 10(1) of the Act was issued by the original applicant to the opponent No. 2. That, in absence of necessary original or certified documents, it was not possible for the insurance company to process the claim of the applicant. That, since the applicant failed to submit the original or certified documents, the only applicant can be blamed for non-payment of her claim, if at all she is entitled for the same. That, this opponent cannot be held liable to pay any compensation to the applicant. The insurance of the opponent No. 2 allegedly taken by the opponent No. 3 was not admitted. That, no relief, as prayed for by the applicant, can be granted. Hence, it was requested by the opponent No. 3 to dismiss the claim application.

2.4 After considering the pleadings of the parties, the learned Commissioner framed the Issues vide exh. 9. That, after hearing the parties, the learned Commissioner was pleased t