The central legal point established in the judgment is the requirement to establish the relationship of employer and employee for a claim under the Workmen's Compensation Act, and the applicability of the provisions of the Motor Vehicles Act in limiting the insurer's liability.

( 1 ) THIS appeal is filed by the Insurance Company challenging the award in WC/sr. 340 of 1997, dated 16. 7. 1988 on the file of Commissioner for workmen's Compensation, Bellary.

( 2 ) IN brief the facts that led to the filing of this appeal are as under : the first respondent was the petitioner before the Workmen's Compensation Court. He filed an application claiming compensation alleging that he sustained injuries in a motor accident while working as a loader in the lorry belonging to the second respondent herein and the said lorry met with an accident on 24. 6 1997 and the first respondent sustained injuries. Therefore, according to him he is entitled fr compensation towards permanent disability.

( 3 ) THIS was contested by the second respondent herein who was the employer contending that the petitioner-claimant was not his employee and he was not paying any wages to him. In other words employer denied the relationship of employer and employee. The appellant herein denied its liability to pay compensation in the absence of relationship of employer and employee between the first and second respondent herein. The appellant further contended that the records would amply establish the fact that the first respondent was only a passenger in the lorry and not an employee under the second respondent. With these objections the appellant and the second respondent before the Commissioner for Workmen's compensation sought for dismissal of the claim petition

( 4 ) ON the basis of the above pleadings 6 issues were raised. The claimant was examined and got marked Exs. P1 to P6. No oral evidence was let in on behalf of the respondents, but Ex. R1-copy of the policy was marked. The Commissioner for Workmen's Compensation after perusing the entire evidence on record has come to conclusion that the claimant was a loader in the lorry belonging to the second respondent and therefore he was entitled for compensation. Ultimately he held that the appellant herein had to pay Rs 58,400/- as compensation. Aggrieved by the said order the present appeal is filed.

( 5 ) THE learned Counsel for the appellant contended that the appeal is maintainable as the question involved in this appeal pertains to a question of law. The learned Counsel for the first respondent submitted that the very appeal is not maintainable, as there is no substantive question of law involved in the case.

( 6 ) THE learned counsel for the appellant relied upon a decision in Oriental Insurance company Limited v. Vasant Pitambar and anr. at para 17 which reads as under "per contra, the learned counsel for the respondent has strenuously argued that this is purely a question of fact which was decided by the Commissioner on the basis of evidence let in by the parties. Therefore, this Court cannot interfere with the findings of the Commissioner. The question whether it arose out of and in the course of employment is a substantial question of law and this has to be decided by the appellate court depending on the contentions raised by the parties therein. It is incumbent on the claimant to establish that the injuries sustained by him arose both out of and in the course of the employment to come within the Workmen's Compensation act. Therefore, it is now necessary to find out as to whether the Commissioner has correctly come to the conclusion that the injuries sustained by the claimant arose out of and in the course of his employment. However, the learned Counsel for the respondent has drawn my attention to the decision mackinnon Mackenzie and Company private Limited v. Ibrahim Mahommad issak, wherein their Lordships have held"the words 'in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words 'arising out of employment' are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the