THE HONOURABLE SRI JUSTICE P. SWAROOP REDDY C.M.A.No.1465 of 2002 JUDGMENT: This civil miscellaneous appeal is filed by the second opposite party against the orders of the learned Commissioner of Workmen compensation and Assistant Commissioner of Labour Eluru-West Godavari District, in W.C.No.19/1997 dated 01.03.1999. 2. Heard. 3. The brief facts are as follows: The claim petition was filed by Jaddu Laxmi and her children and parents-in-law claiming compensation for the death of her husband Venkateswara Rao @ Kondaiah, in a tractor accident. According to the applicants, the deceased Venkateswara Rao @ Kondaiah was working as permanent driver on the tractor/trailor bearing No.ADI.7578/ATP.275 belonging to opposite party No.1, on whose instructions while the deceased was transporting manure load on 11.04.1995, the tractor turned turtle and the deceased died instantaneously. A case in Cr.No.11/95 was registered by Achanta Police. The applicants approached the opposite parties for compensation, who promised to pay, but did not pay. As such, they filed claim petition claiming compensation of Rs.1,50,000/-. According to the applicants, the deceased was 30 years and was paid Rs.1800/- per month. The opposite parties filed counters denying the allegations in the claim petition. On the basis of the pleadings, the following issues were framed: 1. Whether the deceased Jaddu Venkateswara Rao @ Kondaiah died due to an accident rising out of and in the course of his employment as Driver on the tractor/trailor ADI.7578/ATP.274 belonging to OP.1? 2. If so, to what compensation the applicants are entitled to and against whom? On behalf of the applicants, A.Ws.1 to 3 were examined and Exs.A1 to A4 were marked. On behalf of the opposite parties, R.Ws.1 to 3 were examined and Exs.R1 to R3 were marked. On the basis of the material on record, the commissioner granted compensation of Rs.83,192/-. The second opposite party- insurance company challenged the above order contending that there was no employee and employer relationship between the deceased and the first respondent and the compensation awarded is high. The contention of the learned counsel for the applicants is that the material on record clearly reveals that there was relationship of employee and employer between the deceased and the first respondent. As such, the court below has rightly granted the compensation. Now, the point for consideration is whether there are any grounds for allowing the appeal? Learned counsel for the appellant wants to rely on the evidence of opposite party No.1, who spoke as R.W.1 and who deposed that he knows the deceased that died in the accident on his tractor. But he says that he never employed the deceased as driver on his tractor, but the deceased without his (R.W.1’s) knowledge has taken away the tractor from his house. It is impossible to believe the above statement of R.W.1. When the tractor belongs to him and there is no dispute about the accident, the statement that the deceased has taken away the tractor without his knowledge can never be believed. R.W.2 stated that the deceased was an agricultural cooly and he was not the driver of the tractor with R.W.1. In his chief examination, he stated that on the date of accident, the deceased was driving the tractor towards Rajahmundry, thus his evidence also shows that the deceased was driving the tractor at the time of accident. Thus, there is no dispute about the deceased driving the vehicle at the time of accident and the statement of R.W.1 that without his knowledge, the deceased has taken away the tractor cannot be believed. As such, obviously the deceased must have been the driver of R.W.1 and I am inclined to accept the same. If that is so, the appellant is liable to pay compensation as the offending vehicle was admittedly insured with their company. Learned counsel for the appellant contended that there is no material about the accidental death of the deceased, as the medical officer is not examined. This contention also cannot be accepted at all as post-mortem report Ex.A2 is filed showing the accidental death of the deceased and in fact, the case of R.W.1 is also that the deceased died in the accident. In the circumstances, I see no merits in this appeal and the same is liable to be dismissed. Accordingly, C.M.A. is dismissed. No order as to costs. ______________________ P. SWAROOP REDDY, J. 24th December 2010, Rns