Rajesh Balia and R.P. Vyas, J. - (1.) This appeal is directed against the judgment of learned Single Judge dated 13.5.2003 dismissing the appeal filed by the appellants against the rejection of their claim under the Workmen Compensation Act, 1923 (for short the "Act of 1923) by the Workmen Compensation Commissioner.
(2.) The husband of the appellant No. 1 and son of appellant No. 2 died as a result of drowning on 25.11.1990. Deceased Lokpal Singh was about 35 years at the time of death. According to the application dated 15.3.1991 filed before the Workmen Compensation Commissioner, he had died by drowning while travelling on duty on 25.11.1990, which was Sunday. The claim was lodged under the provisions of the Act, 1923 and was stated to be for a sum of Rs. 94,588/-. The monthly wages, according to the appellants, drawn by the deceased from the respondent M/s. Mahendra Machinery Corporation, Banswara under whom he was employed, was stated to be Rs. 1200/- per month. The claim was preferred through the appellant No. 2 Ishwar Singh, father of the deceased, as power of attorney holder of appellant No. 1 and for himself.
(3.) The respondent employer filed his reply to the application while it was admitted that the deceased Lokpal Singh was in his employment but it was stated that on 24.11.1990 i.e. Saturday, deceased Lokpal Singh was on leave for the purpose of going to his in-laws place at Ratlam and he left the establishment after taking leave for 24.11.1990, wherefrom he has not returned. With this premise, it was pleaded that the death of Lokpal Singh did not arise out of or in the course of his employment because on the date of his death, he was on leave and was not travelling for the purpose or in the course of his employment. It was stated that 25.11.1990 being Sunday, the establishment of the employer was observing a weekly holiday and on that day there was no reason for Lokpal Singh to be at the place where he died during the course of his employment. It was stated in the reply that monthly income of the deceased was Rs. 500/- only and not Rs. 1200/- and estimated age of deceased was 40 and not 35 years. Some payment vouchers of salary allegedly made to Lokpal Singh were produced by the respondent, apart from the certificate of registration under the Shop and Establishment Act, 1958 renewed upto 31.12.1991 showing Sunday as a weekly holiday. Attendance register for October and November, 1990 was also produced as Ex. 6.;