1. This appeal under section 30 of the Workmen’s Compensation Act, 1923 (in short “W.C. Act”) has been filed on behalf of the Insurer against the order dated 8.12.2001 passed by learned Commissioner under W.C. Act in Case No.48/2001/non-fatal.

2. In brief case of the workman/respondent No.1 is that he was serving and discharging the work of Conductor upon the truck of his owner (respondent No.2) and who was arrayed as non-applicant No.1 before the Commissioner. Further it has been pleaded in the application by the workman Govind Kumar Mishra that a sum of Rs.4,000/- per month was being paid to him by his employer. At the time of accident his age was 20 years. Arising out of and during his course of employment when his duty was on truck No.MP20/G-6901 (hereinafter referred to as “offending vehicle”), which is owned by his employer, while covering the Tripal and tightening it on the aforesaid truck, all of a sudden, the rope broke as a result of which, he fell down and sustained fracture on his hip bone. On account of injury sustained by workman, operation was performed and rod, etc. was inserted. According to the workman, the doctor has opined 40% permanent disability and now he is unable to discharge the work of Conductor which he was discharging earlier. Despite his employer respondent No.2 knew the fact that he had sustained injury during the course of his employment, he did not deposit any compensation before the Commissioner under the W.C. Act.

3. It is the further case of workman that the offending vehicle was insured in the office of appellant.

4. In the written statement filed on behalf of employer, the factum of receiving injury arising out of and during the course of employment by the workman has been admitted. Further it has been admitted that he was drawing monthly wages of Rs.4,000/- and his age was 20 years at the time of accident. According to the employer, the offending vehicle was insured with appellant and according to terms of policy, the Insurance Company is liable to pay compensation.

5. In the written statement filed on behalf of appellant it has been pleaded that liability would remain with employer and cannot be fastened upon the Insurer because the workman was not under the employment of Insurer and therefore unnecessarily the Insurance Company has been arrayed as party and the application to award compensation be dismissed. Further it has been pleaded that necessary documents were not submitted by the workman in regard to employment in the service of respondent No.2 and further the accident had not occurred arising out of and during the course of employment and no notice was given to the respondent No.2 about the alleged accident and therefore liability to pay compensation cannot be fastened upon the Insurance Company.

6. Learned Commissioner framed necessary issues and after recording the evidence of the parties came to hold that although doctor has certified that workman has sustained 40% permanent disability since his hip bone has been fractured and it has been operated by inserting rod, etc. but since respondent No.1/workman cannot discharge the work of Conductor, therefore, for him the disability would be 100% and hence by the impugned award, learned Commissioner has directed to pay compensation of Rs.5,37,600/- along with interest @ 9% per annum from the date of filing of the application.

7. In this manner this appeal has been filed by the Insurance Company.

8. A preliminary objection has been raised by the learned counsel for LRs of workman/respondent that appellant has not deposited the amount of compensation along with interest as awarded by the learned Commissioner under the W.C. Act and has deposited only Rs.5,37,600/-, therefore, the appeal is not maintainable and same be dismissed on this ground only. In support of this contention learned counsel has placed heavy reliance on the decision of Full Bench of this Court New India Assurance Co.Ltd. v. Savita Sen and others [2004(2) JLJ 214 (FB)=20