A.K. Goswami, J.

1. This is an appeal filed by the Insurance Company under Section 30 of the Employee's Compensation Act, 1923 against the judgment and order dated 20.12.2011 passed by the learned Commissioner, Workmen's Compensation, Abhayapuri, Bongaigaon in WC Case No. 155/2010, whereby the learned Commissioner awarded an amount of Rs.4,33,820/- as compensation for the accidental death of Late Rahim Badsha, who was the husband of the claimant No. 1 and father of the claimant No.2, in a vehicular accident on 16.9.2010. Out of the aforesaid amount awarded, 75% was given to the wife and 25% in favour of the son to be kept in fixed deposit in any nationalised Bank until the minor son attains the age of majority.

2. The deceased was a driver by profession having valid Driving Licence and he was working as a driver on the fateful day of Vehicle No. AS-18A-4282, which was owned by the opposite party No. 2 in the claim petition. At about 4.40 A.M. in the morning on 16.9.2010, after the vehicle had reached Barjharkuchi under Nalbari Police Station, the deceased got up to the top of the truck to check the LPG Cylinders loaded in the said vehicle and as he did so, he came in contact with a live electric wire and died instantaneously due to electrocution. The vehicle in question was insured with the present appellant and in the claim petition, it was pleaded that the deceased, as a driver, earned an amount of Rs.8,000/- per month as wages from his employer, the opposite party No. 2.

3. On the basis of the pleadings, issues were framed by the learned Commissioner and Issue No. 2 reads as follows :-

Whether the deceased died on 16.9.2010 in an accident during the course of employment of opposite party No. 2 ?

4. It is relevant to note that the opposite party No. 2 had admitted that the deceased was a driver employed by him. The appellant insurance company also had not denied in the written statement that the vehicle in question was not insured with them. Issue No. 2 was decided by the learned Tribunal holding that Rahim Badsha died on 16.9.2010 in an accident arising out of and in course of employment of opposite party No. 2.

5. The case has been listed for admission-hearing. I have heard Mr. M. Dutta, learned counsel for the appellant as well as Mr. A. Alam, learned counsel for the Respondent Nos. 1 and 2/claimants.

6. Mr. Dutta, learned counsel for the appellant submits that it is admitted position that the deceased had died as a result of electrocution, when he climbed up to the top of the vehicle to check the cylinders, and therefore, he did not die in an accident arising out of and in course of employment. The learned counsel contends that it is not the duty of the driver to go up to the roof of the truck to check cylinders and rather, it is the responsibility of the handyman. There is no evidence on record explaining as to why the deceased had to go to the top of the vehicle and by not taking care, he had invited his own peril, he submits. The learned counsel further submits that the Electricity Board was also not made a party to the proceeding and in absence of the Electricity Board, no effective adjudication could have taken place. The learned counsel relies on decisions rendered in the case of Mackinnon Mackenzie & Co. (P) Ltd. Vs. Ibrahim Mohd. Issak, reported in AIR 1970 SC1906 as well as in Shakuntala Chandrakant Shresthti Vs. Prabhakar Maruti Garvali & Anr., reported in (2007) 11 SCC 668.

7. Mr. Alam, learned counsel for the Respondent Nos. 1 and 2/claimants submits that the vehicle was loaded with LPG Cylinders, a highly explosive and inflammable substance. He submits that the argument of the learned counsel for the appellant that the driver is only to drive the vehicle and it is not the business of the driver to go up and check the goods which are being transported in the vehicle, is wholly misconceived. It is submitted by him that the job profile of the driver also extends to ensuring that the goods that are being loaded