IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (WCA) 51 of 2006. Date of decision August 27, 2009. National Insurance Company …Appellant. Versus Smt. Kunanoo Devi & another …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Mr. Deepak Bhasin, Advocate. For respondent No. 1 Mr. N.K.Sood, Advocate. Dev Darshan Sud, J. (Oral). This appeal is admitted for hearing on question of law No. 1 as filed with the appeal. It is undisputed before me that the first issue as settled before the Commissioner under the Workmen’s Compensation Act was as to whether the death of the workman occurred during the course of employment or not. While dealing with this issue, the Commissioner has not come to a definite finding, but has simply held that the deceased was in the 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - employment of the respondent. The matter is no longer res integra. The Commissioner was required to give positive finding on this aspect of the matter which was fundamental to the decision of the case, as held by the Supreme Court in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another, (2007) 11 SCC 668. This case is, therefore, remanded to the Commissioner under the Workmen’s Compensation Act, Sundernagar, where the parties shall appear on 5.10.2009. The Commissioner shall thereafter proceed with the matter in accordance with law. It is clarified that the quantum awarded by the Commissioner has not been challenged and it will not be open to the parties to urge anything on that aspect before the Commissioner to adjudicate on that point again. The only point for determination is as to whether the death of the workman occurred during the course of his employment. For this purpose, the parties shall be granted an opportunity to lead any evidence over and above the evidence already on record. It is clarified that the case is being remanded without in any manner assessing the evidence already on record to show as - 3 - to whether the workman died during the course of employment or not. The Commissioner shall come to his own independent finding on the evidence already on record or such other evidence which the parties may lead. He shall not in any manner be influenced by any observation made in this order. This appeal is accordingly disposed of. There shall be no order as to costs. The award amount lying un-disbursed shall not be paid to any party without prior permission of this Court. August 27, 2009 (PC). (Dev Darshan Sud), J.