JUDGMENT:

S.B. Sinha, J.-- Leave granted.

2. Bipul Gogoi was appointed as a Driver of a vehicle bearing Registration No.AS-09/2289 by the third respondent. He reported to his duty at about 9.30 am on 9.10.1996. He was since then not heard by the members of his family or by his employer.

3. The Officer In-charge of the Bokajan Police Station registered a case against Bipul Gogoi. A charge-sheet was filed in connection with the said case before the Judicial Magistrate stating that the Driver has absconded with the vehicle on 23.7.1999.

4. First and second respondents herein, being the parents of the said Bipul Gogoi, filed an application under the Workmen Compensation Act, 1923 (the 1923 Act) for payment of compensation for a sum of Rs.4,48,000/- before the Commissioner of Workmen Compensation, Golaghat for death of their son in course of his employment. Notices were issued to the appellant. It denied and disputed the said claim, inter alia, contending that no compensation in terms of the Workmen Compensation Act was payable, only on a presumption that the said Bipul Gogoi had died. The owner of the vehicle being the third respondent, however, contended that some miscreants have taken away the vehicle with the driver which could not be searched out by the Police.

5. The vehicle was not traced. No dead body was found. Whether the said Bipul Gogoi had died or still alive is not certain.

6. The Commissioner, Workmen Compensation, in view of the reival contentions of the parties, framed two issues. On issue No.1, it was held :

I have gone through the evidence on record. The DW-1 Sri Jayanta Madhab Dutta categorically stated that he investigated the incident. He enquired about the incident in the locality where the driver had lived. He disclosed the names of neighbourers of the claimant. All the persons are residing in front, left and right hand side of the claimant s residence. All of them had spoken that they have not seen the driver since long back. From the above discussion, on the evidence of the Investigator it is proved that the driver never seen by the people of that locality from the date of incident. The driver is not traced since 8.10.1996 till date, i.e., more than seven years. Therefore, in view of Section 108 of evidence Act, it is presumed that the driver is dead. Therefore, the claimant is entitled to get compensation under the provisions of Workmen s Compensation Act. Therefore, the issue No.1 is answered in favour of the claimant.

On issue No.2, the Commissioner, without there being any materials on record and only upon drawing a presumption on the basis of ection 108 of the Indian Evidence Act that the said Bipul Gogoi must have died, held :

It is proved that the deceased was a workman and he died as a result of injuries sustained in an incident/accident arising out of and in course of his employment. Therefore, the claimant is entitled to get compensation.

7. The Commissioner awarded a sum of Rs.2,24,000/- against the appellant herein, opining :

It is admitted fact that Bipul Gogoi was the paid driver of vehicle No.AS-09/2289 (Maruti Van) employed by the opposite party No.1. It is also proved that the said driver and vehicle is untraceable from the date of incident (9.10.1996) till date. At the time of incident/accident he was on duty. Now the question came for decision that whether Bipul Gogoi is dead or alive? The learned counsel for the claimant argued that the driver is murdered by the miscreants at the time of taken away the said vehicle on the other hand, the learned counsel for the opposite party Insurance Company advanced his argument that proof of death is necessary.

8. An appeal was preferred thereagainst by the appellant before the High Court in terms of Section 30 of the 1923 Act. By the impugned judgment, the High Court