Mr. Amol Rattan Singh, J.:- The two issues in the present appeal, arising out of the order of the learned Commissioner under the Employees’ Compensation Act, 1923, dated 28.03.2002, are:-

i) Whether the wages of the deceased employee of respondent no.1 should have been calculated as per the maximum amount prescribed after the amendment in Explanation-II given below Section 4(1)(b) of the Employees’ Compensation Act, 1923 (formerly titled as the Workmen’s Compensation Act, 1923 and hereinafter to be referred to as the Act); and

ii) Whether the penalty prescribed under Section 4-A of the Act, is payable to the appellants and if so, by whom, i.e. by respondent No.1 or by respondent No.2.

2. The facts giving rise to the litigation are that the deceased, Ram Avtar son of Shri Khem Chand, i.e. husband of appellant no.1 and father of appellants no.2 and 3, was working with respondent no.1 as a driver. On 18.04.2000, while he was driving Jeep bearing Registration No.HR 26-C-6488, owned by respondent no.1, he met with an accident with a tractor in the area of village Wazirpur, District Gurgaon and unfortunately died due to the injuries sustained by him in the said accident.

3. The a