The central legal point established is the application of Section 4A(3)(a)(b) of the Workmen's Compensation Act to determine the liability of the Insurance Company and the entitlement to compensation.

JUDGMENT

Biswanath Rath, J. - This matter involves a judgment in W.C. Case. No.41/1998, passed by the Commissioner for Employees Compensation, Berhampur, Ganjam. In spite of appearance of set of counsels for respondent no.1, nobody attended for hearing. Appeal is heard with involvement of counsel for Appellant only.

2. The background involving the case is that while the deceased-workman working as a driver under the ownerrespondent no.1 herein, coming from Berhampur to Phulbani, feeling uneasiness got down from the Bus and was immediately taken to the Hospital at Bhanjanagar by the owner and some members of the Bus Union and the workman succumbed to injuries in the Hospitals itself. It is on the premises that the husband of the claimant was getting Rs.100/- per day besides fooding allowance etc. and he was 40 years old at the time of accident, when the claim petition was filed, claim was made accordingly.

3. Upon service of notice, the owner and the Insurance Company appeared as O.P.1 and O.P.2. Filing the plea, O.P.1 stated that on 25.9.1997, he allowed the driver to drive the Bus bearing Registration No.AP-5T-3377 from Berhampur to Phulbani and back. It is also admitted that the driver received personal injury by accident, arising out of and in course of his employment, resulting in death of deceaseddriver on 29.5.1997. The owner also admitted that thedeceased while working under O.P.1 suffered from heavy bodily pain and there is also admission of taking the deceased to hospital by him. Insurance Company-O.P.2 on its appearance filed written statement denying the claim and the fact of accident in course of and arising out of employment.

4. Entering into evidence and on the basis of materials available on record, the Commissioner closed the proceeding. The Commissioner while finding all the issues in favour of the claimant including coverage of the accident through insurance policy taken support, directed the Insurance Company to deposit amount of compensation of Rs.1,86,748/- within one month from the date of pronouncement of the judgment, failure of which, the claimant was to be benefitted with 50% penalty and 12% interest following the provision of Section 4A(3)(a)(b) of the Workmen s Compensation Act.

5. Sri Sinha, learned counsel appearing for the appellant challenged the judgment on several premises, such as, the deceased did not suffer in course of and arising out of employment, there is no material worth proving that the deceased was in employment under O.P.1, there is no medical support to establish the deceased suffered death ono account of such injury, further there is also no material to establish the liability of the Insurance Company by producing any insurance cover.

6. Taking into account the discussion in the judgment impugned herein, this Court finds, the appellant miserably failed in establishing either of the stands taken herein. On the other hand, on perusal of the impugned judgment, this Court finds, there is clear recording of the admission of O.P.1, the owner therein, who had admitted that the deceased was not only a driver at the relevant point of time but also sustained injuries by way of severe chest pain while driving the bus and attempted to make it clear that the accident occurred in course and arising out of employment. Not only that the owner also attempted to establish the claim of covering the compensation aspect through Insurance Company by producing the cover note.

7. Perusal of the impugned judgment, this Court also finds, the claimant has examined at least five witnesses. O.P.2, the appellant herein, has been provided opportunity to cross-examine each of the witnesses and in fact, the Insurance Company has cross-examined each of the witnesses. Unfortunately, there was no suggestion to find substance in the grounds taken herein during crossexamination. This Court finds surprise in the submission of the learned counsel for the appellant that there was no filing of copy of the policy and medical cer