Swapan Chandra Das, J.

1. The appellant named above, set the law in motion presenting a petition before the Commissioner, Employee's Compensation, West Tripura, Agartala, for granting him adequate compensation for the death of his brother Bhopal Kal, who died on the intervening night of 10.03.2000 and 11.03.2000, arising out of and in the course of his employment, while working as Assistant-cum-Cleaner of vehicle No. TR-01-1805 (Truck) belonged to respondent No.1. One Narayan Kal, father of the appellant-petitioner and the deceased Bhola Kal, was also a petitioner but he died during pendency of the petition before the Commissioner, and therefore, his name was struck off.

Heard learned senior counsel, Mr. S. Deb, assisted by learned counsel, Mr. P.K. Pal for the appellant-petitioner and learned counsel, Mr. P. Gautam for respondent No.2, the National Insurance Company Limited. Respondent No.1, has chosen to remain absent.

2. Brief Facts:-

(i) It was, inter alia, stated by the appellant-petitioner in the claim petition that his brother Bhola Kal was working as Assistant-cum-Cleaner of vehicle No. TR-01-1805 (Truck), employed by respondent No.1 and on 10.03.2000 the said vehicle, carrying loads, was on way to Agartala from Guwahati and at about 11 PM, it reached Bagpasa under Dharmanagar P.S., North Tripura District and the vehicle was parked there. The driver of the vehicle went to sleep in a nearby hotel and Bhola Kal remained in the vehicle and was supposed to sleep in the cabin of the vehicle. On the following morning, the driver found Bhola Kal lying dead inside the vehicle and he immediately informed the incident to Dharmanagar P.S. in writing and Dharmanagar P.S. U.D. Case No.2(3)/2000 u/s 174of Cr. P.C. was registered. It was further stated that the deceased Bhola Kal performed strenuous job in cleaning and loading the vehicle in full day and due to heavy exhaustion he died because of heart failure. He was aged 27 years and used to get Rs. 2,050/- (rupees two thousand and fifty) per month as wages besides TA, DA. It was further stated that the deceased left behind the petitioner as his only legal representative, and therefore, claimed adequate compensation.

(ii) Respondent No.1, the owner of the alleged vehicle, submitted written statement admitting the fact that the deceased was employed as a Helper-cum-Cleaner five months before his death and further stated that the deceased died due to drinking excessive quantity of alcohol as reported by police and that there was no accident at all in the course of employment, and therefore, claim of compensation by the brother of the deceased was not entertainable. Respondent No.1 further stated that the vehicle was insured with the National Insurance Company, covering the risk of driver and the assistant on the date of the accident, and so liability, if any, should be borne by the Insurance Company.

(iii) Respondent No.2, National Insurance Company also submitted written statement, denying the averments made in the claim petition and further stated that the statement that the deceased died as a result of heavy exhaustion for the strenuous job, etc. were all false and that he died because of consuming excessive quantity of ethyl alcohol, which was unconnected with his employment and use of the vehicle, and therefore, the National Insurance Company was not responsible for making payment of any compensation.

(iv) In course of trial, the appellant-petitioner examined himself as PW.1 and in support of his case, submitted documents, namely, School Certificate, Salary Certificate, Death Certificate, Certificate of FIR, copy of Demand Notice with Postal receipts and Post-mortem Certificate, etc., and those were marked as Exbt.1 series. Respondents adduced no oral or documentary evidence.

(v) The Tribunal, considering the evidence on record and considering the Post-mortem report submitted by the petitioner, held that the deceased died due to consumption of excessive quantity of ethyl alcoho