An accident arises out of and in the course of employment if it is caused by a risk incidental to the employee's duties or if it occurs while the employee is performing a duty owed to the employer.

JUDGMENT :

R.K. Patra, J. - This is an appeal u/s 30 of the Workmen's Compensation Act. 1923 (for short, the Act) in which the insurer challenges the judgment and order of the Commissioner of Workmen's Compensation-cum-Assistant Labour Commissioner Jeypore (hereinafter referred to as the Commissioner) awarding compensation of Rs. 29,949/- in favour of respondent No. 1.

2. Respondent No. 1 filed an application before the Commissioner alleging that G. Irrama, his deceased wife, was working under Messrs Bhagirath Engineering Limited respondent No. 2 as a labourer at Loliguda in the construction of railway line and residing in one of the huts provided by the employer at the site Loliguda. In the mid-night of 10.4.1988 there was fire in the site which engulfed the hut in which the deceased was sleeping and was burnt alive. On the basis of the aforesaid allegations, respondent No. 1 claimed compensation of Rs. 50,000/- on account of the death of his wife. Messrs Bhagirath Engineering Limited (respondent No. 2) filed counter saying that the deceased G. Irrama was not working under it and it disclaimed the liability to pay any compensation. It was however, admitted in the said counter that there was fire in the night of 11-4-1988 in which the deceased died. It also pleaded that its work was insured with the appellant and, as such, the insurer is liable to pay compensation if respondent No. 1 was held entitled for the same. The appellant filed its written statement disclaiming the liability on the plea that the deceased was not working under respondent No. 2 and the death of the deceased was not within its knowledge.

3. At the threshold it was urged on behalf of respondent No. 1 that the appeal filed by the insurer is not maintainable in view of the fact that it has not deposited the amount of compensation as required under the third Proviso to Sub-Section (1) of Section 30 of the Act. Shri Roy for the appellant submitted that at the relevant time there were conflicting views of this Court in the matter; one view was that the pre-condition of deposit of money would be applicable only to the employer and not to the insurer and the other view was that the condition precedent provided by law was to be complied with by the party who filed the appeal. He submitted that in view of such divergent opinion no deposit was made. As a matter of fact, the aforesaid difference of opinion continued till it came to be resolved by a Division Bench of this Court in Koili Bewa and Others Vs. Akshaya Kr. Mishra and Another. In view of this position, the preliminary objection raised against the maintainability of the appeal is over-ruled.

4. Respondent No. 1 examined three witnesses including himself. On the basis of evidence, the Commissioner held that the deceased was a workman working under respondent No. 2 which had constructed some huts at Loliguda site for its workmen and the said huts caught fire in the night of 11-4-1988 and the deceased died in the said accident. The Commissioner further held that she died out of and in course of her employment. By taking into account the age, daily wages earned by her, he determined the compensation at Rs. 29,949/-.

5. Shri Roy submitted that the insurance policy in question covered the work site at Parvatinagar and not Loliguda where the accident took place and, as such, no liability can be fixed on it. In this connection, he drew my attention to the insurance policy which is on record. In the schedule of that policy, the following finds mention.

Insured: M/s. Bhagirath Engineering Ltd.,

H.C. Cochin,

Site-Parvatinagar,

Via-Rayagada-765001.

Business: Engineering Works and Construction.

This argument is not tenable in view of the fact that what is mentioned in the policy as extracted above is the address of the employer and not the site of work. In that policy there are other columns dealing with other particulars and the 6th column deals with place or places of employment. It is seen that the said column is left blan