M.Y. Eqbal, J.

1. This appeal filed under Section 30 of the Workmens Compensation Act is directed against the order dated 25.9.97 passed by the Presiding Officer, Labour Court, Dhanbad in Case No. WC 3/95, whereby he has awarded a sum of Rs. 1,08,100/- to the claimant respondents for injury sustained by him in a Motor Vehicle Accident.

2. The claimant is permanent employee of M/s. Bharat Coking Coal Ltd. and he was working as Timber Mistry at Nudkhurkee Colliery. On 2.2.1990, while he was going to his duties in the night shift starting from 12.00 mid night at about 11.30 p.m., a dumper bearing registration No. BHW 9439 belonging to M/s. Bharat Coking Coal Limited knocked him down near Matigarha Colliery resulting in loss of vision because of head injuries. The claimants further case is that as he was not provided with companys accommodation, he used to come to attend his duties from the near by village and on the fateful day while he was going to duty along with his brother the aforesaid Dumper belonging to M/s. Bharat Coking Coal Limited knocked him down. It was contended by the claimant that since he was going to perform his duties and the accident took place, hence the same would be an accident arising out of and in course of the employment.

3. The case of the appellants was that the claim application was filed after four years and it was barred by limitation. It was stated that the claimant was not on duty on 2.2.90 and he did not meet with the accident arising out of and during the course of his employment, inasmuch as the accident did not take place in the colliery premises. It was further stated that the applicant was sick from 3.2.90 and he received treatment from the Company hospital and he was paid sick leave wage for 74 days with effect from 3.2.90, Further, the applicant made an application for declaring him medically unfit. The Medical Board examined him on 30.11.90 and he was declared medically unfit and consequently thereupon his dependent got employment under Para 9.4.2 of the National Coal Wage Agreement. It was further stated that the applicant never made any representation that he met with an accident on 2.2.90 while coming from duty and he never demanded compensation under Workmens Compensation Act. It was only after receiving all the benefits namely, payment of sick leave wages, employment of dependant, an application was filed for payment of compensation under the Workmens Compensation Act. It appears that notices were issued to the parties and thereafter Commissioner, Workmens Compensation transferred the case to the Court of Presiding Officer. Labour Court. Dhanbad for adjudication. The parties, thereafter, lead their evidence before the Labour Court and after hearing the parties, the Labour Court awarded compensation which is under challenge.

4. The Labour Court after discussing oral and documentary evidence adduced by the parties has recorded a finding that the petitioner met with an accident while he was going to join his duty and the accident took place 15-20 minutes before the duty hour. The Labour Court further held that the accident took place in course of the employment so petitioner is entitled to compensation.

5. Mr. A.K. Mehta, learned counsel appearing for the Management assailed the impugned award as being illegal and wholly without jurisdiction. Learned counsel submitted that the Court below has committed serious illegality in holding that the accident took place 30 minutes before the commencement of night shift of the employee ignoring the deposition of two doctors who have categorically stated that they treated the employee at 9.30 p.m. Learned counsel further submitted that the accident did not took place in course of employment or arising out of the employment. Learned counsel put heavy reliance on the decision of the Supreme Court in the case of Regional Director, E.S.I. Corporation and Anr. v. Francis De Costa and Anr. AIR 1997 SC 432.

6. On the other hand. Mr. S. Das, learned coun