JUDGMENT :

Venkata Jyothirmai Pratapa, J.

This Civil Miscellaneous Appeal is preferred under Section 30 of Workmen’s Compensation Act, 1923 (in short “The Act”) against the impugned order in W.C.No.25 of 2002, dated 20.03.2002 on the file of the Assistant Commissioner of Labour Circle II, Visakhapatnam (in short “The Commissioner”).

2. The Appellant herein was the applicant, Respondent Nos., 1 and 2 were Opposite Party No.1 (Owner) and Opposite Party No.2 (Insurance Company) before the Commissioner. For the sake of convenience, the parties herein after will be referred to as arrayed before the Commissioner.

3. Case of the applicant:-

On 19.01.2001, while working as a driver to the tourist bus of Opposite Party No.1 bearing No. AP-31-5-3288 scheduled from Shabarimalai to Visakhapatnam, at Tirupati he tried to get spare tyre from the top with a rope, it got cut off and he fell down from the top and sustained injuries. As instructed by the owner of the bus over a phonecall, he was brought to Anakapalli for treatment and obeying the instructions of the owner, he did not give any information to the police. Thereafter, he was taken to King George hospital on 22.01.2001 for better treatment. Applicant approached the Learned Commissioner seeking compensation for an amount of Rs.75,000/-against the opposite parties.

4. Contention of Opposite Party No.1 & 2:-

Opposite Party No.1 contends that he is the owner of the bus till April, 2002, that the applicant is a worker in some other vehicle, that he never employed the applicant to his bus. He would submit that his bus went to Shabarimalai only once in January, 2001 with Sri N.Srinivasa Rao and Sri K.Appal Raju as the drivers, no accident occurred during that trip and no cleaner accompanied the drivers. Whereas, Opposite Party No.2 contends that since Opposite Party No.1 confirmed that the applicant never worked under him, they are not liable to pay any compensation.

5. Issues, Enquiry and Finding:-

(a) In the light of rival contentions, the Learned Commissioner framed the following issues:-

1. “Whether there exists employer and employee relationship between the opposite party No.1 and applicant”?

2. “If so, whether the applicant sustained injury resulting in disability during the course of employment or not”?

3. “If so, to what extent of compensation the applicant is entitled to”?

(b) During the course of enquiry, Sri G.Thrimurthulu who was an eye witness to the occurrence was examined as AW2. He spoke to the effect that while he was helping the driver in pulling the tyre from the top of the bus, the rope got cut off suddenly and the applicant fell from the top of the bus, got injured. Ex.A1 to A9 were the documents marked. On behalf of OP.No.1, he himself examined as RW1. Ex.B1 and B2 were the documents marked. No oral evidence adduced on behalf of Opposite Party No.2.

(c) The learned commissioner dismissed the claim opining that the applicant failed to establish the relation as employer and employer with O.P.No.1, that no first information report or wound certificate was filed, that AW2 failed to submit any proof that he travelled in that bus, and that the applicant failed to explain the necessity for the third worker in the bus.

6. Feeling dissatisfied and aggrieved by the order impugned, the applicant carried the matter in the Appeal on the following grounds that the Commissioner has failed to appreciate the evidence on record to establish the employee-employer relationship between applicant and O.P.No.1, that he suffered a spinal injury during the course