L. NARASIMHA REDDY, J.

( 1 ) THIS C. M. A is filed under Section 30 of the Workmen s Compensation Act, 1923 (hereinafter referred to as the Act ) against the order dated 20-5-2001, passed by the Commissioner for Workmen s compensation and Assistant Commissioner of labour-l (hereinafter referred to as the commissioner ), in W. C. No. 82 of 1999, dismissing the claim of the appellants.

( 2 ) W. C. NO. 82 of 1999 was presented before the Commissioner alleging that the son of appellants 1 and 2, and brother of appellant No. 3 by name, Mahipal Reddy, was employed as Driver of a seven-seater auto bearing NO. AP-23-T-5214, belonging to the 1st respondent. It was alleged that accident occurred on account of the collision of the said vehicle with another unknown vehicle at 3. 00 a. m. on 29-9-1999, when it was proceeding from Patancheru to ghanpur, and that the said Mahipal reddy died in the accident. A sum of rs. 2,50,0007- was claimed as compensation, by stating that the deceased was aged 20 years at the time of accident and that he was being paid the salary of rs. 2,000/- per month. The vehicle was insured with the 2nd respondent.

( 3 ) THE 1st respondent filed counter affidavit admitting that the deceased was employed under him, and that he died in the accident that took place on 29-9-1999. It is also stated that since the vehicle is insured with the 2nd respondent, he cannot be made liable to pay any compensation. The 2nd respondent filed counter affidavit contending that the deceased was not working as driver, when the accident took place. Rest of the contents of the claim petition were also denied.

( 4 ) ON behalf of the appellants, the 1st appellant was examined as P. W-1 and the 1st respondent was examined as R. W-1. The driving licence and other related documents were filed. The Commissioner rejected the claim of the appellants on taking the view that there did not exist any relationship of employer and employee between the deceased-driver and the 1st respondent.

( 5 ) THE learned counsel for the appellants submits that the best person to speak about the existence of relationship of employer and employee between the deceased and the 1st respondent, was the 1st respondent himself, and in his evidence, as R. W-1 the 1st respondent has categorically stated that the deceased was under his employment. He submits that R. W-1 has extensively spoken to the occurrence of the accident and the steps taken thereafter, and in that view of the matter, the Commissioner was not at all justified in drawing on inference that such a relationship did not exist.

( 6 ) THE learned counsel for the 2nd respondent submits that during the course of cross-examination of P. W-1 and R. W-1, on behalf of the 2nd respondent, it was elicited that except the oral assertion, no record, as such, existed to prove that the deceased was employed with the 1st respondent.

( 7 ) THE appellants have, specifically pleaded in their claim petition that the deceased was employed with the 1st respondent as driver on a seven-seater auto, and that he died in an accident that occurred on 29-9-1999. The salary that was being paid to the deceased, and his age were stated. The 1 st respondent admitted these assertions in his counter affidavit. It is only the 2nd respondent who has disputed verything that pleaded by the appellants. On the basis of the pleading before it, the commissioner framed four issues, viz. , (a) Whether the deceased is workman within the meaning of the Act. (b) Whether the accident arose out of, or in the course of employment. (c) Whether the compensation claimed is due and correct; and (d) Whether the opposite parties are liable to pay the compensation.

( 8 ) P. W-1 is the 1st appellant herein, viz. , the father of the deceased. He clearly spoke to the factum of his son having been employed as a driver with the 1st respondent; the salary being paid to him; the occurrence of accident and the age of the deceased, by the time he died. He was not cross-exami

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