1. The appeals in MFA Nos. 5322/2011 and 3254/2011 are filed by respondent Nos. 1 and 2, who are the insured and the insurance company, respectively, challenging the judgment and award passed by the Labour Officer and Commissioner for Workmen's Compensation, SubDivision - 2, at Chickmagalur ('the Workmen's Commissioner' for short) dated 28.10.2010 vide No. wCa / FC / 40/2007, questioning the apportionment and the liability.
The parties are referred to as per their rankings before the Workmen's Commissioner to avoid confusion and for the convenience of the court.

2. The factual matrix of the case is that the claimant is the wife of deceased Swamy Gowda, who was working for the respondent No. 1 as an agricultural labourer / coolie. The policy was taken by the insured from respondent No. 2 - insurance company. The claim of the claimant before the Workmen's Commissioner is that on 12.7.2006, her husband, while proceeding to the work of respondent No. 1 in coffee plantation, fell down in the wet land which belongs to the insured and died on account of the said incident. It is also her claim that he was earning Rs. 150 per day and he was working with respondent No. 1 for the last 15 years and on account of death of her husband, she has lost an earning member of her family. Hence, she is entitled for the compensation.

3. The insured appeared and filed the statement of objections contending that the incident had taken place in the early morning and not during the course of the employment or arising out of the employment. He was paying wages of Rs. 70 per day to the deceased and not Rs. 150 as claimed by the claimant. It is contended that the policy was taken from respondent No. 2 and the said policy was in existence at the time of accident. Hence, in case of any liability, the same is payable by respondent No. 2.

4. The insurance company also appeared and filed the statement of objections contending that death of the worker did not occur during the course of employment or arising out of the said employment. In the claim petition, it is contended that on account of heavy rain and mud, he slipped and fell down from the ridge of the wet land and died. The statement made by RW 1 clearly establishes that there was neither any incident nor accidental injury during the course of and arising out of the employment. Hence, the death of Swamy Gowda is no way connected with his employment. Under these circumstances, the insurance company is not liable to pay any compensation.

5. Without prejudice to the said contention, it is also contended that the policy was in force and the same is subject to the terms and conditions of the insurance policy. In terms and conditions of the insurance policy, the insurance company is not liable to pay interest or penalty that may be levied in the case on hand and the same are specifically excluded under the policy. However, admitted that the policy obtained by respondent No. 1 is a workers' compensation policy and payment of premium was collected in respect of 23 permanent workers and 25 casual workers and the total wages per annum is Rs. 8,60,000. If the award of compensation is based on wages actually earned by the deceased, which are more than wages shown as payable for the purpose of insurance, the liability of the insurance company is only to the extent of premium received by it and for the amount exceeding, to be borne by employer himself as held by this court in the case of Oriental Insurance Co. Ltd. v. Gangavva, 1998 (6) Kar LJ 433.

6. The insurance company denied all other averments with regard to his income and also the age. Based on the pleadings, the Workmen's Commissioner has framed the issues. The claimant, in order to substantiate her claim, examined herself as PW 1 and got marked the documents at Exhs. P1 and P2. On the other hand, respondent No. 1 - insured also examined himself as RW 1 and got marked the document at Exh. R2. The insurance company also examined one witness as RW 2 and got marked