HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO. 3366 OF 1999 DATED: 02.11.2009 BETWEEN: Vemula Uswhanna and others .. Appellants And D.Sathaiah and another .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO. 3366 OF 1999 JUDGMENT: This appeal is filed against the order, dated 28.08.1999 passed by the Commissioner for Workmen’s Compensation, Ranga Reddy District in W.C.No.788 of 1996. 2. The applicants before the learned Commissioner are the appellants herein. The applicants, who are the legal representatives of the deceased Saidulu, who died in a motor vehicle accident, filed the application under Section 22 of the Workmen’s Compensation Act, 1923 before the learned Commissioner. They contended therein as follows: That the deceased was working as a driver under the Opposite Party No.1 (respondent No.1) and was driving the auto bearing No.AP 11 3030 belonging to the first respondent. That on 14.06.1996 at 7.30 P.M. while the deceased was driving the auto towards Mallikarjuna Nagar, he dashed to the road divider and fell down near Mallapur and received severe head injury and succumbed to the said injury. According to the appellants, the death of the deceased occurred during the course of the employment under the respondent No.1. The auto bearing No. AP 11 3030 belonging to the respondent No.1 was validly insured with the second respondent/opposite party No.2. Therefore, both of them are jointly and severally liable to pay compensation. 3. Before the Commissioner, the first respondent, who is the owner of the auto involved in the accident remained ex parte and the second respondent – insurance company contested the matter. 4. In the course of it’s counter, apart from denying the material averments of the second respondent insurance company contented, inter alia, that the deceased Saidulu has no effective driving license on the date of the accident and also the auto involved in the accident was not insured with the second respondent under a valid policy. It has been further contended that the deceased was not the driver of the auto under opposite party No.1, but he took the same on lease basis from the opposite party No.1, and thus he is not a paid employee of the opposite party No.1. 5. Initially, the appellants examined the first applicant as PW.1 and one M.Swamy as PW.2. Both of them have categorically spoken to the fact of the deceased Saidulu working as driver under the opposite party No.1/respondent No.1. According to PW.1, the opposite party No.1 is paying Rs.1600/- per month as salary to the deceased besides paying Rs.20/- per day towards batta and that the deceased was aged 22 years on the date of the accident. The appellants also marked Exs.A.1 to A.5. But the witnesses were not cross examined by the counsel for the insurance company and thereafter, by his order dated 18.09.1997, the learned Commissioner granted compensation of Rs.1,62,794/- basing on the following calculation: Age 22 years. Relevant age factor is 221.37 Wage Rs.1404.25 per month. = 14.04.25 x 50/100 x 221.37 + 1,62,070.51 However, subsequently, the insurance company filed a petition to set aside the order which was passed ex parte and on considering the said petition, the learned Commissioner set aside the ex parte order, dated 18.09.1997 and permitted the second respondent – insurance company to proceed with the cross examination. PWs.1 and 2 were cross-examined by the counsel for the second respondent – insurance company. Thereafter, both parties filed written arguments and having considered the material on record and the written arguments filed by both the parties, the learned Commissioner passed the impugned order to the effect that as per Ex.A.1 – first information report, one Mr Golla Komaraiah was driving the auto bearing No. AP 11 3030 from Mallapur to his residence in Mallikarjuna Nagar on 14.06.1996 and on the way, he met the deceased Saidulu, who came out from the toddy shop and requested G.Komaraiah to permit him to drive the auto, and accordingly Komaraiah permitted Saidulu to drive the auto and occupied the back seat. The deceased Saidulu, who drove the auto, dashed the road divider, fell down and received head injury. Therefore, according to the learned Commissioner, the deceased Saidulu was not employed under the opposite Party No.1, the accident did not take place during the course of the employment of Saidulu with opposite party No.1 and consequently, the appellants are not entitled for compensation. The said order is put to challenge in this appeal. 6. I have heard the learned counsel appearing for the appellants and the second respondent – insurance company. 7. It is true that as per Ex.A.1 – first information report, the complaint was lodged by one Golla Komaraiah stating that he was in fact driving the vehicle, the deceased who came from a toddy shop, met him on the way and requested him to drive the vehicle. He allowed Saidulu to drive the vehicle and sat on the back seat and thereafter, Saidulu drove the auto and dashed against the road divider and fell down on the ground and received head injury. 8. Ex.A.1 document is filed by the applicants, but their application for compensation is contrary to the terms of it. Their specific plea in the application is that the deceased Saidulu was working as driver under the opposite party No.1 and that he died while driving the auto bearing No.AP 11 3030 during the course of employment of the opposite party No.1. 9. To substantiate the said version, PWs.1 and 2 were examined and they have spoken to the said fact. Golla Komaraiah was not examined by either of the parties. The owner of the auto (opposite party No.1) remained ex parte. It is not the specific contention of the second respondent (opposite party No.2) that in fact Golla Komaraiah was driving the auto and he permitted the deceased Saidulu to drive the auto bearing No.AP 11 3030 and while driving the said auto, Saidulu dashed the road divider and in the said accident, he died. It is pertinent to note that the second respondent – insurance company specifically contended in the counter that the deceased Saidulu took the auto on hire from the first respondent/owner of the auto, but he was not employed as a driver under the owner of the auto and thus, the accident did not take place in the course of employment of Saidulu with the first respondent. 10. The insurance company did not adduce any evidence in proof of its version in the counter. Whereas, PWs. 1 and 2 have categorically spoken to the fact that the deceased Saidulu was working as a driver under the first respondent and that he died while driving the auto bearing No. AP 11 3030 during the course of his employment with the first respondent. In the strict sense the contents of Ex.A.1 – FIR do not constitute any substantive evidence. But what all stated by PWs.1 and 2 before the Commissioner is a substantive evidence. It is not the specific contention of the second respondent – insurance company that one Golla Komaraiah was in fact driver under the opposite party No.1 and he allowed Saidulu to drive the auto bearing No.AP 11 3030. The version that Golla Komaraiah, the driver of the auto bearing No.AP 11 3030 permitted Saidulu to drive the auto at the relevant point of time is the version in the written arguments and it is inconsistent with the version mentioned in the counter filed by the first respondent. If really, it is the specific case of the second respondent, it is obligatory on the part of the second respondent to examine the first respondent (opposite party No.1) as it’s witness to prove that, in fact, Komarayya was the driver of the auto bearing No.AP 11 3030 employed by him at relevant point of time. But the second respondent did not examine the first respondent or any other witness to discharge it’s burden. Under these circumstances, the learned commissioner should have held basing on the evidence of PWs.1 and 2 that the accident occurred during the course of employment of Saidulu with the first respondent. But, erroneously the learned commissioner held in the negative and dismissed the application filed by the appellants. The order passed by the Commissioner being erroneous and not in accordance with the evidence before him, is liable to be set aside in this appeal and accordingly, the same is set aside. 11. The compensation of Rs.1,62,070/- granted by the Commissioner by its ex parte order dated 18.09.1997 is based on proper assessment and strictly in accordance with the provisions of Section 4 of the Workmen’s Compensation Act and therefore, in this appeal the application filed by the appellants is allowed granting compensation of Rs.1,62,070/-. The opposite party Nos.1 and 2 are jointly and severally liable to pay compensation to the appellants. The opposite parties 1 and 2 (respondents 1 and 2) are liable to deposit a sum of Rs.1,62,794/- which was granted as compensation by way of demand draft drawn in favour of the Commissioner, Workmen’s Compensation, Ranga Reddy Zone within 30 days from the date of receipt of a copy of this order, otherwise the amount shall carry interest at the rate of 6% per annum from the date of petition till the date of realization. 12. In the result, the appeal is allowed accordingly, without any order as to costs. _______________ R.KANTHA RAO,J Dated: 02.11.2009 kvrm HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO. 3366 OF 1999 DATED: 02.11.2009