( 1. ) THIS appeal has been preferred as against an order dated 19-9-2005 passed by Commissioner for Workmens Compensation, Satna in Case No. 12/ wc Act/fatal/2004.

( 2. ) THE claimants have come up in this appeal aggrieved by the impugned order dismissing their claim petition, they claimed compensation on account of death of Surendra Kumar Dwivedi, a driver in the employment of respondent Jaikaran Prasad Shukla. He used to drive the Jeep (MP-19/9648 ). It was also not disputed by the owner that on 27-6-03, deceased was going from satna to Orchcha, District Chhatarpur, before 7-8 kms. from Chhatarpur at village Gadebara Gautam, some unknown persons committed murder of driver surendra Kumar Dwivedi after gagging his mouth with a cloth. Body was thrown away in the agricultural field. They took away the vehicle, ultimately vehicle could not be traced. Report of the incident was lodged as PS-Civil Lines, chhatarpur on 28-6-03 where the case was under investigation. Autopsy was performed. Deceased used to obtain salary of Rs. 4,000 per month, apart from the allowance of Rs. 50 per day used to be paid to him, his age was 42 years. The claimants prayed for award of suitable compensation along with interest and penalty.

( 3. ) OWNER in the reply submitted that salary of deceased was Rs. 3500, however, no separate allowance used to be given to the deceased. The vehicle never used to be plied for hire or reward. On date of accident the vehicle had gone from Railway Station to Chhatarpur. The risk was covered under the policy cover note 91963 with effect from 11-4-03 to 10-4-04. Liability, if any, was to be borne by the insurer, thus, he was not liable.

( 4. ) THE insurer in its reply denied the liability contending that there was no evidence to prove that murder of Surendra Kumar Dwivedi was committed. It was submitted that some unknown persons had committed murder of Surendra Kumar Dwivedi, excessive claim as to the salary and compensation was made. Deceased was not holding valid and effective driving licence, vehicle was not used for the purpose it was insured, thus, insurer was not liable to make indemnification.

( 5. ) THE Commissioner for Workmens Compensation has found that it was not established that Surendra Kumar Dwivedi was murdered during the course of employment. Commissioner has found that deceased was a "workman", income has been assessed at Rs. 4,000 per month, however, commissioner for Workmens Compensation has held that as there was possibility of breach of policy, hence insurer has not been held liable to make payment of compensation, if any. Claim petition has been dismissed, consequently, this appeal has been preferred.

( 6. ) THE questions which arise for consideration are whether murder of deceased was committed during the course of employment and whether insurer can be said to be liable for making payment of compensation.

( 7. ) WE have heard learned Counsel for parties at length and gone through the entire evidence with their help.

( 8. ) FIRSTLY, we advert to the question whether the finding recorded by commissioner for Workmens Compensation that deceased Surendra Kumar _ dwivedi did not die during the course of employment can be said to be proper. It was not disputed by owner in the reply that deceased was his driver and had taken the jeep to Chhatarpur. It was also not disputed that murder of Surendra Kumar Dwivedi was committed by some unknown persons. It was also not disputed that ultimately the jeep was taken away by miscreants after committing murder, the jeep could not be traced though an offence was registered at PS-Civil Lines, Chhatarpur in that regard. When we consider the evidence on record, Laxmirani (C. W. 1) has stated that her husband had taken the Jeep as per the instructions of the owner to Chhatarpur, certain relatives were taken to Chhatarpur, some unknown persons committed murder of surendra Kumar Dwivedi and threw away the body in an agricultural field. Police had recorded her statement du