THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No.1158 OF 2011 JUDGMENT:- The appeal is filed by the National Insurance Company against the award dated 28-06-2005 in W.C.No.221 of 2004 of the Commissioner for Workmen’s Compensation Tribunal, Hyderabad. A claim was made consequent on the death of the deceased/ Shaik Ismail who is sad to be a second driver on the vehicle belonging to the owner- first respondent and 5th respondent in this appeal. It was stated that when lorry bearing No.KA 01/1220 was being taken in the reverse direction by the driver and when the deceased was giving signal, due to the rash and negligent driving of the vehicle, it hit the deceased and as a result of which he died. The Insurance Company admitted the insurance of the vehicle but the employment of the deceased as a second driver and cause of death were disputed. After considering the material on record, the Tribunal has granted a compensation of Rs.3,96,067/-. Questioning the same, the Insurance Company has filed this appeal. Now the point that arises for consideration is: Whether the Insurance Company is not liable to pay the claim? POINT:- The learned counsel for the appellant contends that there is no proof with regard to nature of the incident or employment of the deceased on the vehicle as a second driver and in the absence of such evidence, awarding of the compensation is not legal. The learned counsel for the respondent on the other hand contends that the charge sheet and the investigation done by the police clearly goes to show that the incident was due to the fault of the driver of the lorry. What ever may be the cause for the incident, which was found by the police, the essential fact is it has to be proved that the deceased was employed by the owner of the vehicle and the incident was happened in the course of employment. To prove this fact, either the owner of the vehicle or the driver of the vehicle at the time of incident or the cleaner of the vehicle are the best witnesses to speak about the above fact. Evidently, the evidence of the first petitioner, who is the wife of the deceased, has no relevancy about the cause of the incident. It is more particular since the deceased died only when the vehicle is said to be taking reverse direction and not when the vehicle was going on the road along with the other driver. Therefore, in view of the above circumstances, the evidence of first petitioner is not sufficient to prove that the deceased died in the course of employment attracting the liability of the Insurance Company. Therefore, the award of the Commissioner is liable to be set aside and the matter is requires to be remanded to the lower court. Therefore, the award of the Commissioner is set aside and the matter is remanded to the Commissioner to give an opportunity to the petitioner to adduce further evidence about the nature of employment of the deceased and the cause of the incident. The lower Tribunal shall dispose of the case within two (2) months from the date of receipt of a copy of this Judgment. The amount, which was lying in the deposit, shall lie till disposal of the application before the lower Tribunal. Accordingly, the appeal is disposed of. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 01-11-2011 TSNR