JUDGMENT :

This Civil Miscellaneous Appeal is preferred under Section 30(1) of Workmen’s Compensation Act, 1923 (in short ‘The Act’) against the impugned order dated 19.08.1997 in W.C. No.98 of 1996 on the file of the Commissioner for Workmen’s Compensation, Visakhapatnam (herein after be referred to as “Commissioner”).

2. The appellant herein was the claimant and respondent Nos.1 and 2 herein were the Opposite Parties before the learned Commissioner.

For the sake of convenience, the parties hereinafter will be referred to as they arrayed before the learned Commissioner.

3. The case of the appellant in brief is that;

The claimant who is the injured filed the petition before the learned Commissioner seeking compensation of Rs.1,00,000/-stating that, he worked as driver for the lorry bearing No.AHQ 8469 under Opposite Party No.1 and on 17.08.1995, while he was discharging his duty as a driver and when the lorry reached at Kinthali at Etcherla, Srikakulam, due to the collusion of lorry with a van going from opposite direction with a high speed, it dashed the lorry. In the accident, he sustained injuries to his both legs. Soon after the accident, he was shifted to Srikakulam Government Hospital, later shifted to K.G.H., Visakhapatnam for better treatment and took treatment for 4 ½ months as inpatient.

4. Contention of the Opposite Parties: Opposite Party No.1 did not choose to appear and submit their objections on the claim. Opposite Party No.2 being the insurance company filed counter denying the case of the claimant and put him to strict proof of employee employer relationship, age, wage and the manner in which the accident occurred etc.

5. Issues – Enquiry – Finding:

(a) Basing on the rival pleadings of both parties, the learned Commissioner framed the following issues.

1. Whether the applicant is workman within the meaning of Workmen’s Compensation Act ?

2. Whether the applicant sustained disability of 40% in the accident arising out and in the course of employment ?

3. If so, what is the relief to the applicant ?

(b) During the course of enquiry, the claimant himself was examined as AW.1. The Doctor who issued disability certificate is examined as AW.2. Exs.A1 to A5 were the documents marked in support of the claim. Opposite Party No.2 did not choose to adduce any evidence.

(c) After hearing both the counsel and on appreciation of the evidence on record, the learned Commissioner opined that, since the FIR-Ex.A1 would not show the claimant was the driver of the lorry bearing No.AHQ 8469 at the time of alleged accident, applicant failed to examine any eye witness to show that he was the driver at the relevant point of time and Ex.A2 shows his condition was stable at the time of discharge, but thereafter he obtained disability certificate and held that applicant failed to prove that he was on duty as a driver and met with an accident. Accordingly, petition was dismissed.

6. Grounds of Appeal

Feeling aggrieved and dissatisfied with the order impugned, the claimant preferred the present appeal on the grounds that,

i) The learned Commissioner failed to appreciate the evidence on record in right perspective.

ii) The evidence of claimant itself is sufficient to prove that he was the driver at the time of accident, and accident occurred during the course of employment.

iii) The order impugned is contrary to the scope and spirit of the Workmen’s Compensation Act.

7. Substantial Questions of Law:

In memo of appeal, the substantial questions of law that would emerge for determination are as follows:

1. Whether the Commissioner is justified in dismissing the entire claim of the claimant?

2. Whether the Commissioner is justified in observin