ORDER :

1. Leave granted.

2. The challenge in the present appeal is to an order passed by the High Court of Delhi on 28.05.2018, whereby an appeal under Section 30 of the Employees Compensation Act, 1923 was allowed and the Award of compensation by the Commissioner of Rs.4,48,000/- along with a simple interest at the rate of 12% from 15.08.2009 was set aside.

3. As per the appellants, the deceased was the second driver on a vehicle owned by Respondent No.2. The main driver was Kala, son of Shaukat Ali. It was on 15.07.2009, the truck owned by Respondent No. 2, met with an accident in which one Abrar lost his life.

4. Before the Commissioner, the claimants examined mother of the deceased Shahajahan (AW1) and Sarfraj (AW2), brother of the deceased. The witnesses produced by the appellants were cross-examined, but no incriminating circumstances came into light. In fact not even a suggestion was put to the two witnesses examined by the claimants that Abrar was not the driver working with the owner. The owner of the vehicle - Gulshan Kumar, appeared as his own witness. He admitted that he had employed two drivers and two conductors on the trucks owned by him. It was further admitted by the owner that Kala, who was said to have been engaged by him, did not receive any injury, though the truck overturned. It goes to show that in fact, Abrar was the Driver, who was driving the truck at the time of accident which led to his death while he was engaged by the owner.

5. After appreciating the evidence led by the appellants, the Commissioner allowed the petition and awarded a sum of Rs. 4,48,000/-.

6. The learned Single Judge, in an appeal filed under Section 30 of the Employees Compensation Act, 1923, set aside the Award passed by the Commissioner on the ground that the appellants have failed to prove that the deceased’s employment with the owner as well as the Driving License to support the plea of the claimants that he was appointed as a second Driver.

7. After going through the records and hearing the learned counsel for the parties, we find that the High Court should not have interfered with the Award passed by the Commissioner as the appeal before the High Court is maintainable only on the substantial question of law. The High Court had decided the appeal as if it is a first Appellate Court on a question of fact as well.

8. Apart from the said fact, we find that the owner has taken a plea that the deceased was not engaged as a Driver, but that remained only a plea, unsupported by any evidence on record. It is the owner who had the best evidence to depose whether the deceased was engaged by him or not. In the absence of the best evidence, the findings recorded by the Commissioner could not have been interfered with by the High Court.

9. Consequently, we find that the order of the High Court suffers from patent illegality. Therefore, the same is set aside and the order passed by the Commissioner on 16.11.2016 is restored. The amount of compensation along with interest be paid within two months.

10. In view of above, the appeal is allowed.

11. Pending interlocutory application(s), if any, is/are disposed of.