Harilal, J.

United India Insurance Company Limited, the 2nd respondent in WCC.No.6/2012 on the files of the Commissioner for Employees' Compensation has filed this appeal challenging the legality and correctness of the findings of the Commissioner for Employees' Compensation. According to the applicants, the accident which culminated in the death of the deceased was arising out of and in the course of employment and thereby the first opposite party is liable to pay compensation to them. The applicants, who are the legal heirs of the deceased employee, filed the aforesaid application under section 22 of the Employees' Compensation Act, 1923 claiming compensation of Rs.5,84,800/- for the loss suffered by them owing to the death of the deceased employee. The parties are referred to as in the Workmen's Compensation Case.

2. According to them, the deceased employee by name Venugopalan Nair was employed under the first opposite party as a driver in his Jeep bearing Regn. No. KL-5/B-3182. On 7/3/2010 at 9.30 PM while he was driving the Jeep from Thekkethkavala after a trip to his residence through the Chamampathal road and when it reached at Chirakkal Valavu, he lost control upon the vehicle and met with an accident. He sustained serious injuries and eventually he succumbed to the injuries. He was aged 52 years and was drawing a monthly wages of Rs.8,000/- at the relevant time.

3. First opposite party who employed the deceased has filed a written statement admitting the accident and the employer-employee relationship. It was also admitted that the accident was arising out of and in the course of employment. The second opposite party filed a written statement denying the employer-employee relationship between the first opposite party and the deceased. All the parties adduced evidence to prove their respective pleadings and after considering the evidence on record the Commissioner found that the accident was arising out of and in the course of employment and thereby the first opposite party is liable to pay compensation to the applicants. Since the first opposite party was insured with the second opposite party, he is liable to indemnify the first opposite party. With the above view the second opposite party was directed to deposit an amount of Rs.4,38,660/- with simple interest @ 12% with effect from 7/3/2010 within 30 days from the date of order, failing which the amount would be realized with 30% of such amount towards penalty.

4. Heard the learned counsel for the appellant and the learned counsel for the respondents.

5. The learned counsel for the appellant focused his arguments firstly on the finding whereby the Commissioner fixed Rs.6,000/- as monthly wages of the deceased. It is contended that the accident occurred on 7/3/2010 and on that date the notification under section 1(b) of the Employees' Compensation Act, 1923 was not in force; it was published on 31/5/2010 only. Therefore, the Commissioner for Employees' Compensation ought to have taken Rs.4,000/- as monthly wages as the explanation (2) to sec.4(1) was in force on 7/3/2010, the date of accident. Thus, the Commissioner has fixed the monthly wages in contravention to the aforesaid explanation to section 4(1)(b). Further it is contended that since the notification as per Sec.4 (1) (b) was published with effect from 31.5.2010 only, the Commissioner for Workmen's Compensation ought to have fixed monthly wage at the rate of Rs.4000/- till 31.5.2010. In short, it is contended that even though the Explanation to Sec.4 (1) (b) was deleted with effect from 18.1.2010, the same continued to remain in force till 31.5.2010, the date of publication of notification under Sec.4 (1) (b). Therefore the Commissioner ought to have fixed the monthly wage at the rate of Rs.4,000/- per month only. Secondly, it is contended that the Commissioner for Workmen's Compensation invoked penalty clause envisaged under Sec.4 (a) (b) in the impugned order itself contrary to the proviso to Sec.4 (a)