THE HONOURABLE SRI JUSTICE P. SWAROOP REDDY C.M.A.No.2279 OF 2003 JUDGMENT: This civil miscellaneous appeal is filed by the 2nd respondent insurance company in W.C. Case No.10 of 2002 questioning the award dated 28.01.2003 passed by the learned Assistant Commissioner of Labour, Authority under Workmen’s Compensation Act, Hyderabad. 2. Heard. 3. The facts are as follows: The application was filed by the applicants-claimants claiming compensation of Rs.5,00,000/- under the Workmen’s Compensation Act, 1923 for the death of P.Nagaiah @ Nagaraju, who died in a motor accident on 06.09.2002 during the course of his employment. Applicants are the wife and children of the deceased. Their case is that the deceased was working as a driver, earning Rs.4,000/- per month towards salary and Rs.100/- a day as batta. On 22.02.1998 while the deceased was proceeding as a second driver of the lorry bearing No. AP 28 U 5276 from Hyderabad to Vijayawada, near Aytipamula village, the first driver of the lorry lost control dashed it to an RTC bus bearing No.AP 10 Z 8656, in which the first driver Gopal Reddy also died on the spot. Appellant-2nd respondent filed counter contending before the authority that there is no relationship of owner and driver between the deceased and the owner of the lorry. On the basis of above pleadings, the following issues were framed: 1. Whether the deceased workmen died in an accident that arose out of and during the course of his employment under O.P.1 on 06.09.2002 as a lorry driver? 2. If so, to what quantum of compensation the applicants are entitled for, and who is liable to pay? On behalf of the applicants, the wife of the deceased was examined as AW1 and Ex.A1 to A10 were marked. On behalf of the respondents, Ex.B1 policy was marked. 4. On the basis of the material on record, the authority awarded total compensation of Rs.3,09,725/-. As against the same, the present appeal is filed as already referred. 5. Now, the main contention of the learned counsel for the appellant is that there was absolutely no material to show that the deceased, husband of the first petitioner in this case was the driver of that lorry. The owner of the vehicle examined never spoke about the deceased being the driver of that lorry, no driving licence of the deceased was filed to show that he was the driver. 6. The contention of the learned counsel for the respondents is that the deceased was the driver of the lorry and the documentary evidence of inquest report and hospital record show that the deceased was the driver of the lorry and that no strict proof as required in a criminal case is required to prove the owner and driver relationship between the owner and driver. 7. Now, the point for consideration is whether there are any grounds for allowing the appeal? 8 . Ex.P2 inquest report, Ex.P5 medical certificate issued by Kamineni Hospital would show that the deceased was the driver of the lorry. The present appellant respondent has not examined any witness to show that the deceased was not the driver of that lorry. Non-production of his driving licence, which perhaps the petitioners could not trace after the death of the deceased cannot be a circumstance to say that the deceased was not at all a driver. Non- examination of owner of the vehicle is of no consequence as he might be interested against the deceased as he might be liable for certain things, as such, he might have avoided to accept that the deceased was his second driver. The contention of the learned counsel for the appellant is that the deceased was only a passenger in the lorry. There is no material for the same and according to the learned counsel for the contesting respondents, one Gopal Reddy, who died in the same accident was another driver cum cleaner of the lorry. There is no material to show that any other person was there in the cabin of the lorry to say that apart from above referred persons, i.e. two deceased, there were anyone else in the lorry to say that the other person was the cleaner or second driver. 9. Learned counsel for the contesting respondent relied on a decision of our High Court in AKULA SURYANARAYANA v. PEDDIBOINA VENKATA MOHAN AND OTHERS[1] where it was held that for the purpose of Section 3(1) of the Workmen Compensation Act, where the employer himself resisted the claim for producing material contending that the contesting person was not his workman, this Court held that proof beyond reasonable doubt is not required to prove the existence of relationship of employer and employee that proof of such a degree is required in criminal cases and not in those under social or beneficial legislations. Further more in this case there was collusion of the lorry with an RTC bus in case the deceased was not second driver of the lorry, the petitioners could have claimed compensation against RTC instead of taking risk of claiming as 2nd driver of the lorry. 10. In view of the above, I hold that there are no merits in the appeal and the same is accordingly dismissed. No costs. ______________________ P. SWAROOP REDDY, J. 28th June 2010, Rns [1] 2006 ACJ 1526