This appeal by Oriental Insurance Company Limited is against the order dated 19.11.2001 in W.C. Case No.1 of 2001 passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour (the Commissioner, for brevity), Patancheru, Medak District awarding a sum of Rs. 2,14,000/- to respondents 1 to 3 herein (hereafter called, claimants) as compensation for the death of Kanakaiah, who died in the course of employment as driver with fourth respondent herein. The two grounds urged in support of the appeal are that Kanakaiah was not an employee of fourth respondent and that the Commissioner cannot award more than the amount claimed by dependents of workman.

Claimants filed W.C. Case before the Commissioner alleging that Kanakaiah was driver of jeep bearing No. AP 9 AA 1063 belonging to fourth respondent (hereafter called, owner/employer). He was aged 27 years and was earning Rs. 2,500/- per month. On 25.09.2000, Kanakaiah died when the jeep met with an accident in the course of employment. Dependents of Kanakaiah claimed Rs. 2,00,000/- as compensation. After receiving notices, employer denied employee- employer relationship and alleged that fourth respondent entered into contract with M/s. Venkateswar Travels and made payments to travel agency and not to deceased. The appellant/insurer filed separate counter opposing the case. The insurer denied employment, wage and accident. Quantum of compensation was also opposed as excessive.

The Commissioner conducted enquiry. The wife of deceased gave evidence as A.W.1 and marked Exs.A.1 and A.2. The Divisional Engineer of Transmission Corporation of Andhra Pradesh (AP TRANSCO) gave evidence as R.W.1 and also another witness as R.W.2 besides marking Exs.R.1 to R.7. Insurer did not examine any witness nor brought on record any documentary evidence except marking insurance policy. After framing appropriate points for consideration, the Commissioner rejected the plea of insurer and employer, and came to the conclusion that the deceased Kanakaiah was in the employment of AP TRANSCO.

Having regard to age and his income, he arrived at payable compensation as per Workmen's Compensation Act, 1923 (the Act, for brevity) at Rs. 2,13,570/- and also awarded Rs.430/- towards costs making it a total of Rs. 2,14,000/-.

In this appeal, though notices are served, none appears for employer (fourth respondent). Learned counsel for appellant/insurer made submissions relevant to two questions that arise as indicated hereinabove.

Insofar as first question is concerned, the answer must be against appellant for two reasons. The insurer did not make any efforts to adduce evidence to disprove the allegation of claimants that Kanakaiah was in the employment of AP TRANSCO. A.W.1 deposed that her husband Kanakaiah was working with AP TRANSCO. The initial burden was thus discharged. In rebuttal, insurance company ought to have let in evidence. It was not done. AP TRANSCO examined two witnesses. Though they alleged that the vehicle was hired from M/s. Venkateswar Travels and that amounts were paid to said agency, no contract between AP TRANSCO and said agency were marked nor any proof was submitted to show that deceased was in employment of M/s. Venkateswar Travels. Thus, for their failure to lead rebuttal evidence, the benefit must go on probabilities to claimants because A.W.1 deposed that her husband was working with AP TRANSCO for some time. When the jeep was admittedly used by AP TRANSCO, it is not unsafe to draw an inference that when Kanakaiah died, he was in the employment of AP TRANSCO working with fourth respondent. This Court is, therefore, not able to countenance submission of learned counsel for appellant.

Claimants asked for a sum of Rs. 2,00,000/-alleging that deceased Kanakaiah was earning Rs.2,500/- per month and he was aged 27 years. Learned Tribunal correctly applied the law, namely, Section 4(1) of the Act while calculating payable compensation at Rs. 2,13,570/- taking int