S.N. Modi, J. - (1.) THIS is an appeal against the order of the Workmen's Compensation Commissioner, Udaipur, dated July 31, 1971.
(2.) THE facts giving rise to this appeal are that Mst. Sosarbai, wife of the appellant, was an employee of the respondent and was drawing Rs. 60/ - per mensem as her wages. On March 21, 1970, motor truck bearing No. RJD 2131 dashed against a pillar, which fell on Mst. Sosarbai resulting in her death within the precincts of the factory. The appellant, who is the husband of Mst. Sosarbai, presented an application on November 19, 1970, claiming Rs. 3,600/ - as compensation. The Workmen's Compensation Commissioner (hereinafter referred to as the Commissioner), thereupon served a notice on the respondent and directed him to submit his written statement. The respondent in his written statement, contested his liability to pay compensation by saying that Mst. Sosarbai died on account of her own carelessness and negligence as she left the work and began to roam about here and there. It was also pleaded that the appellant was not the dependent of Mst. Sosarbai and as such he was not entitled to claim compensation. The respondent further pleaded as the accident took place by a motor truck, the claim for compensation ought to have been filed before the Motor Accident Claims Tribunal under the Motor Vehicles Act and not to the court of the Commissioner under the Workmen's Compensation Act. On the pleadings of the parties, the following issues were framed - - "1. Whether Smt. Sosarbai, wife of Shri Chunni Lal, met with an accident arising out of and in the course of her employment ? 2. Whether this court has no jurisdiction to hear and decide this claim ? 3. Relief - On considering the evidence led by the parties, the Commissioner found that in case of fatal accident, negligence or carelessness was no defence under the provisions of the Workmen's Compensation Act. The Commissioner then dealt with the question whether the accident arose out of and in the course of employment and came to the conclusion that there was no positive evidence on record, documentary or otherwise, to prove that the accident arose out of and in the course of employment. According to the learned Commissioner, there was no evidence on the record to prove that Mst. Sosar Bai was engaged on duty at the time and at the place of accident, or that the accident took place during the currency of the employment. The Commissioner came to the above conclusion because he found that the accident took place after the working hours of the factory and at the time when she went to the shed to take her 'Dabosa' on her way to home. On the question of jurisdiction, the learned Commissioner decided in favour of the appellant and held that the option lay with the claimant either to file his claim under the Workmen's Compensation Act or under the Motor Vehicles Act. The Commissioner further held that the appellant was not entitled to file the claim as he failed to prove to be a dependent of Mst. Sosarbai. No finding, as to the quantum of compensation to be awarded to the appellant, was given by the Commissioner. On the above findings, the learned Commissioner dismissed the claim. It is against this order that the appellant has filed this appeal.
(3.) I have heard the learned counsel for the parties and gone through the record of the case.;