Honble VERMA, J.–The present Misc. Appeal No. 1030/2000 has been preferred against the order dated 15.5.2000 passed by Commissioner under Workman Compensation Act by the dependants of workman Nijamuddin @ Nijju Khan. The connected appeal, which is under defect, has been preferred by the employer Veer Singh.

(2). For the reason that both the appeals have arisen out of the same accident and relating to same parties, therefore, it was ordered that the appeal filed by the employer be attached and both the appeals are being decided by this common order. The registry shall put regular number of appeal as the formal defects are waived and also for the reason that decision of the appeal No. 1030/2000 shall also be applicable to the appeal filed by employer.

(3). The deceased Nijamuddin was admittedly an employee of employer Veer Singh, who was employed as driver of the truck No. RJ-01/G-790, while Nijamuddin was on duty on 17.1.99 and under the employment of Veer Singh, he was detailed to get the truck load with rocky stones from a mine situated at Balriya ki Pahari. During the process of loading stones, he was hit upon his head by a stone which ultimately resulted in his death. The FIR was also registered and notice was issued to owner and he was apprised about the accident and his consequential liability. The dependants of the employee filed the claim application before the Commissioner under the Workman Compensation Act.

(4). After framing the relevant issues in regard to deceased having died while being in employment; age, and salary of the deceased employee; dependancy of claimants; and entitlement of claimants to the compensation, after recording the evidence of witnesses, the Commissioner decided all the issues in favour of claimant, but had exonerated the Insurance Company from its liability only on the ground that at the time of accident, the truck was not in motion and was in stationary position that is according to the Commissioner, even though the workman was on duty but he sustained the injury while the truck was being loaded and it was in stationary position. The Insurance Company has been exonerated on the ground that the workman has not sustained the injury while the truck was in motion and it was in stationary position. The Commissioner was of the opinion that even the truck driver died while on duty under the employment, but until and unless he dies in moving truck, the Insurance Company is not liable to pay any compensation as per policy.

(5). Both the appeals have been filed by claimants as well as employer for setting aside and modifying the order of the Commissioner with the prayer that if the truck was insured under the Act and the premium was paid for that purpose and if the driver of truck died while on duty and under employment, it makes no difference whether he dies in moving truck or when the material was being loaded in the truck.

(6). On the pleadings of the parties, the Commissioner had passed the following order:-

1. The deceased at the time of accident was on duty and under the employment of employer.

2. The deceased was of the age of 30 years and was earning Rs. 2,000/- per month.

3. The claimants were dependants of the deceased.

4. The truck was not in motion and the truck was in stationary position as the stones were being loaded and the truck had not met with any accident and that the deceased had not died in moving truck, therefore, the Insurance Company was not liable to pay compensation.

5. On the quantum of compensation the Commissioner held that the claimants are entitled to receive the compensation Rs. 2,07,980/-.

(7). Learned counsel for the appellants submits that the Insurance company could not have been exonerated for the reason that the truck was insured and the premium was paid and the workman had died while on duty and the truck was being loaded, therefore, the Insurance company was liable to pay the compensation.

(8). Reliance is placed on the judgment of High Court of Gauhati in case of The Nort

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