JUDGMENT :

VENKATA JYOTHIRMAI PRATAPA, J.

1. This Civil Miscellaneous Appeal is directed against the impugned Order dated 19.10.2004 in W.C. No. 55 of 2004 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Cuddapah (hereinafter be referred to as ‘Commissioner’).

2. The appellant herein was the O.P. No. 2, respondent Nos. 1 to 4 were the applicants Nos. 1 to 4 and the respondent No. 5 was the O.P. No. 1 before the Commissioner. For the sake of convenience and understanding, the parties are referred to as they were arrayed before the learned Commissioner.

Case of the Applicant

3. Applicant No. 1 is wife, Applicant Nos., 2 and 3 are the daughters and the Applicant No. 4 is the son of deceased-Katti Ratnamaiah. Applicant Nos. 2 to 4 are minors, represented by their natural guardian/mother/Applicant No. 1. The deceased was a driver of auto bearing No. AP 04 U 6159 which belongs to the O.P. No. 1. On 05.04.2004, one Devi Reddy Janardhan Reddy and Nimakayala Chinna Reddaiah, known to the deceased, boarded the auto of the deceased at kamalapuram.

4. After reaching Kamalapuram, they requested the deceased to go to Narpala Village of Ananthapur District and reached by 08.00 pm. The deceased borrowed some amount from Janardhan Reddy long prior to the incident. The said Janardhan Reddy in order to execute his plan i.e. to kill the deceased, took him to Narpala Village and offered a brandy bottle after mixing sleeping pills. The deceased, after consuming the brandhy, fell unconscious. Later, the said Janardhan Reddy and Chinna Reddaiah killed the deceased and escaped along with the auto for their wrongful gain.

5. The deceased was aged 29 years and used to get Rs.4000/- per month as wages at the time of the accident. The murder of the deceased took place during the course and out of his employment under O.P. No. 1. The auto was insured with O.P. No. 2 vide Policy No. 050904/31/03/00137 valid from 10.04.2003 to 09.04.2004. As the Opposite Parties did not cooperate for payment of compensation, the applicants approached the learned Commissioner by filing a claim petition seeking compensation of Rs.4,00,000/- with interest at 12% p.a.

Version of Opposite Parties

6. O.P. No. 1 was not served with notice. A paper publication was given on 07.10.2004 in Praja Sakthi Daily Newspaper of Cuddapah District. In spite of the publication, O.P. No. 1 failed to appear before the learned Commissioner and as such, he was set ex-parte.

7. O.P. No. 2 being Insurance Company entered its appearance through an Advocate and filed Counter Affidavit denying the material averments made in the petition inter alia contending that the O.P. No. 1 violated the conditions of the policy as the driver exceeded 60 Km from his residence, that the deceased was in drunken condition in the course of employment. O.P. No. 1 is alone to pay compensation and therefore, it cannot indemnify the risk of O.P. No. 1. Therefore, O.P. No. 2 prayed for dismissal of the claim against them.

Proceedings before the Commissioner

8. Basing on rival pleadings of both parties, the learned Commissioner framed the following issues:

(i) Whether the deceased was a workmen as per the provisions of workmen’s Compensation Act, 1923 and he met with an accident arising out of and in the course of his employment resulting into death?

(ii) What was the age of deceased at the time of accident?

(iii) What were the wages paid to the deceased at the time of