THE HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No. 168 of 2008 JUDGMENT: Being aggrieved by the order dated 25.10.2007 passed by the Commissioner under Workmen Compensation and Asst. Commissioner of Labour, Circle-I, Visakhapatnam in W.C.No. 33 of 2005, the present C.M.A. is filed by the applicant. Appellant herein is the applicant in W.C. No. 33 of 2005. The tribunal below while assessing the evidence on record dismissed the application filed by the applicant. Aggrieved by the impugned Order dated 25.10.2007, the present C.M.A. is filed mainly urging that the tribunal below failed to assign the reasons for dismissal of the petition though there is ample evidence under Ex.A-1 to A-7 and that the impugned Order is unjust, contrary to the oral and documentary evidence on record. Now the point for consideration is whether the Order of the tribunal below is sustainable. For the sake of convenience, the parties herein are referred to as they are arrayed in the W.C. before the tribunal below. Point: One Sri Prapulla Chandra Satyanarayana filed petition under Workmen Compensation Act for payment of compensation of Rs. 3,13,506/- with interest alleging that he is a licensed auto driver and one P.Ch. Appalakonda is the owner of the auto bearing No. AP 31 W 6592. It is further averred that he was drawing monthly wage of Rs. 3,000/- and that on 25.7.2004 while he was on duty as driver on the aforesaid auto bearing No. AP 31 W 6592, he met with an accident near Anandapuram Bridge NH-5 Road resulting sustaining grievous injuries on his left leg, ankle and was immediately admitted in A.M.G. Hospital, Visakhapatnam, where he underwent surgery and his disability is assessed as 30% and that the Police, Anandapuram registered a case in Crime No. 85 of 2004 under Section 338 of IPC. It is further averred that due to the above accident, he became unfit for any manual labour and lost earning capacity. O.P-1 filed her counter denying all the material averments and asserted that the applicant is a licensed auto driver on a monthly wage of Rs. 3,000/- and he sustained injuries during the course of employment and that she is not liable to pay any compensation to the applicant as the vehicle in question is duly insured with O.P-2. The 2nd O.P. has filed its counter denying all the material averments and further asserted that O.P-1 and applicant are living in the same house as wife and husband and there is no employer and employee relationship between them and that the present petition is collusive and motivated and therefore, the applicant is not entitled for any compensation as prayed for in the petition. Before the tribunal, on behalf of the applicant while himself was examined as A.W-1 examined P. Appalaraju as A.W.-2 and Exs.A-1 to A-7 were marked and on behalf of the opposite parties, none were examined. The applicant Prapulla Chandra Satyanarayana filed his chief affidavit as A.W-1. According to him, he is a licensed auto driver and used to work as auto driver in the auto bearing No. AP 31 W 6592 on a monthly wage of Rs.3,000/- per month and sustained injuries during the course of his employment. It is also his further evidence that he sustained grievous injuries and unable to attend his normal duties and his disability is assessed at 100%. This witness was cross examined on behalf of the counsel for O.P-2 and during the course of cross examination, this witness admitted that he is residing in Door No. 44-1/346 at Thatichetlapalem Leprosy colony, Visakhapatnam along with his wife and three children. This O.P-1 is none other than the wife of this witness. In proof of the employment, he filed Ex.A-7 salary certificate. As seen from the Ex.A-1, it reads that this witness is being paid an amount of Rs.3,000/- per month as salary by O.P-1. Ex.A-7 is not proved by examining the O.P-1 for the reasons best known to him. O.P-1 did not give evidence in support of Ex.A-7 with-helding the evidence of O.P-1 by the petitioner, an adverse inference can be drawn about the alleged employment of applicant with the alleged offending vehicle. Before granting any compensation in matters pertaining to Workmen Compensation Act, it is the foremost burden of the applicant to prove that he sustained injury during the course of his employment. In the present case on hand, admittedly, as per the evidence of applicant, he is living with O.P-1 as husband under one roof. Though, O.P-1 admittedly, the owner of the offending auto as per Ex.A-4 and A- 5, the fact remains both applicant and respondent No.1 are husband and wife leading marital life under one roof. As I said already, Ex.A-7 was not proved by O.P-1 for the reasons best known to her. As per Section 12 of Workmen Compensation Act, the definition of workman is i) A railway servant as defined in clause Section 2 of the Railway’s Act, 1989(24 of 1989), not permanently employed in any administrative district or sub divisional office of a railway and not employed in any such capacity as is specified in Schedule-II, or i(a)(a) a master, seaman or other member of the crew of a ship, b) a captain or other member of the crew of an aircraft. c) a person recruited as driver, helper, mechanic, cleaner or any other capacity in connection with a motor vehicle, d) a person recruited for work abroad by a company and who is employed outside India in any such capacity as 1. The definition of Workman as per Section 2(ia)© of Workmen’s Compensation Act is “A person recruited as driver, helper, Mechanic, cleaner or in any other capacity in connection with a Motor Vehicle.” But in the present case on hand, as per the positive evidence of the applicant as A.W.-1 and the circumstances of the case on hand, it can be safely inferred that the applicant will not come under the definition of workman. Since the injured applicant is none other than the husband of O.P-1, he will not fall under the definition of workman and therefore, he is not entitled to claim any compensation from the O.P-2 Insurance Company. The tribunal below while discussing the evidence on record came to the positive finding that the applicant will not come under the definition of workman which in my view is not erroneous thereby sustainable and therefore, I see no grounds to differ with the finding of the tribunal below. In the result, the C.M.A. is dismissed while confirming the Order of the tribunal below dated 25.10.2007. ___________________ 10.6.2011 CHV