( 1 ) THIS appeal is directed against the judgment of the learned single judge in C. M. A. No. 1917 of 1991 dated 29. 6. 2000, which arises out of the order of the Commissioner for Workmen s Compensation, ranga Reddy District Zone in w. C. No. 109 of 1989.

( 2 ) THE appellant is the claimant in W. C. No. 109 of 1989, which was filed under sections 3 and 4 of the Workmen s Compensation act, 1923 seeking a compensation of Rs. 98,000 on the ground that he suffered permanent disability during the course of the employment. By order dated 3. 4. 1991 the Commissioner for Workmen s compensation granted compensation of rs. 35,471 together with interest at 6 per cent per annum. Aggrieved by the said order, C. M. A. No. 1917 of 1991 was filed by New India Assurance Co. Ltd. , respondent no. 1 herein with whom the accident vehicle was insured and who was held to be liable for payment of the compensation awarded in W. C. No. 109 of 1989, learned single Judge allowed the appeal holding that W. C. No. 109 of 1989 is not maintainable against the appellant insurance company. Hence the Letters Patent Appeal by the claimant.

( 3 ) WE have heard the learned counsel for the appellant-claimant as well as the respondent No. 1 insurance company.

( 4 ) BEFORE adverting to the contentions raised by the learned counsel, it is necessary to refer to the brief facts of the case.

( 5 ) THE appellant-claimant filed W. C. No. 109 of 1989 stating that he is employed as labourer on a lorry bearing No. AGT 1084, belonging to the respondent No. 2 herein and insured with the respondent no. 1 herein vide policy No. 610103/732/10597/055382 valid from 16. 3. 1989 to 15. 3. 1990. He pleaded that on 15. 5. 1989 while he was travelling in the said lorry which was loaded with Shabad stones the lorry dashed against a tree on account of which he suffered grievous injuries resulting in permanent disability. He claimed that he was receiving a salary of Rs. 750 per month apart from batta of Rs. 10 per day and he was aged about 35 years at the time of the accident and since the accident took place during the course of employment he is entitled for compensation which is quantified at Rs. 98,000.

( 6 ) THE said petition was contested by both the employer as well as the insurance company. The employer in his counter though admitted that the claimant suffered injuries during the course of the employment denied the allegation that the accident had taken place due to rash and negligent driving of the driver. It was further pleaded that since the vehicle was insured and the driver was having a valid driving licence at the time of the accident the insurance company alone is liable to pay the compensation.

( 7 ) IN the counter filed on behalf of the insurance company all the averments in the claim petition were denied including the alleged accident and the relationship of employer and employee and the permanent disability sustained by the claimant. It is specifically pleaded that the claimant was not working as labourer with the respondent no. 1 at the time of the accident.

( 8 ) THE claimant examined himself as aw 1 and got marked Exhs. A-1 to A-4 documents to substantiate his claim. On behalf of the respondents two witnesses were examined and Exh. R-1 claim form was marked. The Commissioner on appreciation of the material on record held that the claimant was employed with the respondent no. 1 and, therefore, he is entitled to receive the compensation. Though on behalf of the insurance company while placing reliance upon the statement of the claimant under section 162, Criminal Procedure code, it was contended that the claimant was only a passenger travelling in the lorry, but the Commissioner did not accept the same. The Commissioner found that the claimant suffered loss of earning capacity to the extent of 40 per cent and accordingly held that the respondents are liable to pay an amount of Rs. 35,471 as compensation with interest at 6 per cent per annum within two mont