1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR First Appeal NO. 869/2010 (Smt. Durgabai wd/o Sunil Uikey & others VERSUS National Insurance Co. Ltd. & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.N. Vastani, counsel for the appellants. CORAM : SMT. VASANTI A. NAIK, J. DATE : NOVEMBER 25 , 2010 . By this appeal, the appellant challenges the judgment passed by the Commissioner under Workmen's Compensation Act, partly allowing the application filed by the appellants and directing only non-applicant no.2 to pay the compensation to the applicants. According to the appellants, the Commissioner ought to have fastened the liability to pay compensation also on the respondent no.1-Insurance Company. The appellants had filed the application under Section 4 read with Section 22 of the Workmen's Compensation Act claiming an amount of Rupees Four Lacs towards compensation for the death of one Kisan, who according to the appellants, had died during the course of employment with respondent no.2. It was the case of the appellants that the respondent no.2 was the owner of a tractor and trolley which he had purchased for transport and contract business. It was the case of the appellants that at the relevant time on 31.03.2008, the respondent no.2 had employed deceased Sunil on the tractor and trolley for transporting metal from Buraditola Pahadi. It was further pleaded that the metal transportation employment was going 2 on for the last few days prior to the date of accident on 31.03.2008. The application proceeded exparte against the respondent no.2, the owner of the tractor. The respondent no.1-Insurance Company had, however, filed the reply and had denied its liability to pay the compensation. It was the case of the Insurance Company that the tractor and trolley of the respondent no.2 was insured for agricultural use but, the tractor and trolley was used for commercial purpose i.e. for transportation of the metal at the time of the accident. Though the respondent no.2, the owner of the tractor and trolley had not filed reply and tendered any evidence, the owner of the tractor and trolley was examined after a witness summons was issued to him on behalf of the claimants. The Commissioner, on an appreciation of the evidence on record, held that the claimants had succeeded in proving that deceased Sunil was working as a driver on the tractor and trolley at the time of the accident and the accident arose during the course of his employment with the respondent no.2 The Commissioner held that only the owner of the tractor and trolley was liable to pay the compensation to the claimants as at the relevant time, the tractor and trolley was used by the respondent no.2 for commercial purpose though it was insured with the respondent no.1-Insurance Company for agricultural use only. The findings recorded by the Commissioner on the issues involved in the case are pure findings of facts based on the proper appreciation of the evidence on record. The Commissioner rightly directed the respondent no.2, the owner of the tractor to deposit the amount of compensation of 3 Rs.3,27,705/- with the Commissioner along with interest. While fastening the liability only on the owner of the tractor and while absolving the Insurance Company of its liability, the Commissioner rightly disbelieved the case of the respondent no.2, the owner of the tractor, that the tractor was used for agricultural purpose at the relevant time. The submission made on behalf of the appellants that the Commissioner could not have believed a part of the evidence tendered by the respondent no.2 for answering the first two issues in favour of the claimants and disbelieved the part of the evidence on the use of the tractor for agricultural purposes is not liable to be considered in an appeal filed by the claimants as it is necessary to note that it was the case of the claimants in the claim petition that the respondent no.2 had purchased the tractor and trolley for transport and contract business and on the date of the accident i.e. on 31.03.2008 and even for the previous few days, the same was used for transporting metal. There is nothing wrong in the observation made by the Commissioner that the evidence of the respondent no.2 in regard to the use of the tractor for agricultural purpose cannot be termed as legal and valid evidence and the said observation, cannot be faulted with, in the aforesaid circumstances. Since no substantial question of law arises for consideration in this first appeal, the same is dismissed with no order as to costs. JUDGE APTE