THE HON’BLE SRI JUSTICE K.S.APPA RAO C.M.A.No.3284 of 2003 JUDGMENT: Being aggrieved by the judgment and decree dated 29.03.2003 in W.C.Case No.83 of 1999 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Vijayawada, Krishna District, the present appeal is preferred. The learned counsel for the appellant urged that the lower Tribunal taking the age of the deceased at 45 years is not correct and that the owner of the vehicle involved in the accident was set ex parte before the Tribunal and later gave evidence as second witness which is an after thought and, therefore, his evidence cannot be taken into consideration and finally urged that the conversion of the status of the deceased from driver to Cleaner while awarding compensation is not justified. The counsel for the respondents while attaking the said argument urged that the Tribunal correctly assessed the age of the deceased with cogent reasons and that the owner of the vehicle though not filed any written statement has participated in the trial before the Tribunal and gave evidence, on which the Tribunal gave finding, and finally urged that the Tribunal while giving cogent reasons granted compensation converting the status of the deceased from driver to Cleaner as being the employee at the relevant point of time. Now the point for consideration is whether the finding of the Tribunal is justified? The manner in which the accident was admitted. It is an admitted fact that the owner of the vehicle involved in the accident was earlier remained set ex parte and has not participated in the lower Tribunal, but at the time of enquiry, he gave evidence in favour of the claimants stating that the deceased was an employee under him as second driver to the vehicle in question. It was held in catena of decisions that a party though not filed written statement or counter as the case may be may participate in the proceedings and advance the defence to enable the Court to arrive a just decision. So the participation of the owner of the vehicle as PW.2 at the time of enquiry could not bar his evidence for just decision of the Court. PW.2 was cross-examined at length, but no suggestion was given to him that he is not the owner of the offending lorry in which the deceased met with the accident. No rebuttal evidence was adduced that PW.2 is not the owner of the vehicle. It should, therefore, be construed that PW.2 is the owner of the vehicle in question and the vehicle met with an accident when the another driver was driving the vehicle and the deceased was also travelling along with the driver of the vehicle at that time. In view of the positive assertion of the owner that the deceased is also an employee under him as second driver and he met with the accident while he was in the employment, absolutely, the owner and the insurance company are jointly and severally liable to pay the compensation to the applicants. The next point for consideration is whether the finding of the Tribunal awarding compensation to the claimants treating the deceased as Cleaner of the vehicle at the time of accident, is justified. It is not in dispute that the deceased was not the driver at the time of the incident. The dispute was only that he was not having valid driving licence to drive the goods vehicle. Admittedly, he was employed on the driving vehicle at the time of accident. The Tribunal, thus, while awarding compensation has taken into consideration the earning capacity of the deceased as Cleaner but not as the driver of the vehicle. In view of my observations supra, I am of the considered opinion that the Tribunal has rightly awarded compensation to the applicants under Minimum Wages Act and the order of the lower Court is sustainable. In the result, the appeal is dismissed. No costs. K.S.APPA RAO,J 3rd March, 2011 PNV