THE HONOURABLE SRI JUSTICE P. SWAROOP REDDY C.M.A.No.2117 OF 2003 JUDGMENT: This civil miscellaneous appeal is filed against the order, dated 02.12.2002 passed by the Commissioner for Workmen Compensation and Assistant Commissioner of Labour – III, Hyderabad in W.C.No.28 of 2002. Second respondent - insurance company is the appellant. 2. Heard. 3. The brief facts are as follows: The deceased S.Harla was the husband of first applicant, father of second applicant and son of third applicant. He was employed as an auto driver by first respondent in W.C.case. On 21.08.2002 he died due to the accident on account of a vehicle dashing his auto at Sanjeevaiah Park on 20.08.2002. A case in Crime No.149 of 2002 was registered about the accident at P.S., Ramgopalpet. According to the applicants, the deceased was earning Rs.150/- per day as auto driver. He was aged about 35 years. They claimed compensation of Rs.4,25,000/- The first respondent in the W.C.Case N.Dhanikya, owner of the auto filed a counter contending that the deceased was working with him as an auto driver for three months by the date of accident, that the deceased died during his employment with him. The second respondent, i.e., the present appellant filed a counter denying the allegations in the petition. Second respondent has also denied about the deceased being under the employment of the first respondent. On the basis of the above pleadings, the following points were framed: 1. Whether the deceased late Sri S.Harla was involved in the accident that occurred on 20.08.2002 while driving the auto bearing No.AP 11 W 5147 and subsequently died in the hospital on 21.08.2002? 2. Whether the deceased workman was employed as auto driver on the auto belonging to the first opposite party? 3. If yes, who are liable to pay compensation to the applicants? 4. What is the amount of compensation entitled by the applicants? 4. On behalf of the applicants, A.W.1 was examined and on behalf of the respondents, R.W.1 and 2 were examined, who are the Investigator and Assistant Divisional Manager of second respondent. Exs.A1 to A9 were marked on behalf of the applicants and Exs.D1 to D3 were marked on behalf of the respondents. On the basis of the material on record, the learned Commissioner granted total compensation of Rs.3,84,267/- with interest at 9% per annum. Aggrieved by the said compensation, the present appeal is filed. 5. The main contention of the appellant-insurance company is that there was no relationship of employer and employee between the deceased and the first respondent. As such, the insurance company is not liable to pay the compensation. 6. Now, the point for consideration is whether there are any grounds for allowing the appeal? 7. Most of the facts are not in dispute, i.e., about the death of the deceased on account of the accident on 20.08.2002 while he was driving auto-rickshaw, on account of unknown vehicle dashing him. The only question that arises for consideration is as to whether there was employer and employee relationship between the first respondent and the deceased. 8. The evidence adduced on behalf of the applicants is so and further the first respondent has filed a counter admitting the same. The appellant herein has examined two witnesses, the Investigator and Officer of the Corporation, who stated that the deceased was not employed with the first respondent, but the deceased took the auto on hire for two hours on that day. 9. R.W.1, the investigator stated that he gathered material from the first respondent only about the deceased being not employed by him. This evidence is absolutely of no use as it is in the position of hear say evidence. Further more, the first respondent himself has filed a counter contending that the deceased was employed with him and circumstances also would show that the same might be true as the auto being driven by the deceased as driver and it was owned by the first respondent. Though it is possible that auto was taken on hire by the deceased from the first respondent, it is also possible that the first respondent employed the deceased as auto driver and the material on record shows that the deceased was employed with first respondent. As revealed from the counter of first respondent, the same has to be accepted. On account of there being no other strong contra evidence, and as already referred, the evidence of R.W.1 is only in the shape of hear say and the evidence of R.W.2 is also not of any great help to decide the question of employment. 10. In all the above circumstances, I see no merits in the appeal and the same fails and is dismissed. However, the rate of interest is reduced from 9% per annum to 6% per annum through out. 11. Accordingly, the C.M.A. is partly allowed. No costs. ______________________ P. SWAROOP REDDY, J. 21st October 2010, Rns