( 1 ) THESE two appeals are arising out of a common order passed by the Commissioner for Workmen's Compensation, Chitradurga. R- 1 in these two appeals are the claimants before the Commissioner. According to them, they were working as loaders an un-loaders in the tractor of R-2 on 27. 2. 2000 and that they have sustained certain injuries in road traffic accident. According to them, immediately after the accident they were taken to PHC Hiriyur. Thereafter, they were shifted to District Hospital, Chitradurga for better treatment. It is contended by the claimants that they were transporting size stones in order to construct farm house of their employer who is the owner of the tractor and trailer. Appellant/insurance company resisted the claim petition. Commissioner after recording the evidence of the claimants and also Dr. Shivanna Reddy who has issued the disability certificate in favour of the claimants held that the accident was occurred during the course of employment and further held that the claimants were entitled for compensation of Rs. 1,28,844-00 and rs. 58,565-00 with interest at 12% p. a. Being aggrieved by the award of the commissioner, insurance company has come up in appeal before this Court in these two appeals.

( 2 ) ACCORDING to the learned Counsel for the appellant, companyis not liable to pay the compensation awarded by the tribunal on the ground that the tractor and trailer was not used for the purpose for which it has been insured. He further contends that the injuries sustained by the claimants are non-schedule injuries and that the doctor who has been examined has not assessed the loss of earning capacity as per the provisions of Section 4 (1) (c) of the Workmen's compensation Act. On these grounds, he requests this Court to allow the appeal and to set aside the order passed by the Commissioner. Per contra, learned Counsel for the claimants contend that the accident occurred while discharging the duties as loader and un- loader under R-2 and that the tractor was used for the purpose of construction of farm house in the agricultural land of the owner of the vehicle. Therefore, construction of a farm house in agricultural land of the owner cannot be said that the vehicle was used for the purpose in violation of the terms and conditions of the policy. He further contends that the commissioner has awarded compensation based on the appreciation of the evidence of the claimants as well as the doctor and requests this Court to dismiss the appeal.

( 3 ) IN evidence, claimants have categorically stated on oath thatthey sustained injuries while transporting size stones to the owner's land in order to construct a farm house. According to the appellant, vehicle was used for commercial purpose. Appellant's counsel has relied upon the judgment of Madhya Pradesh High Court reported in PAPPOO vs OM PRAKASH AND OTHERS and a judgment of andhra Pradesh High Court reported in NEW INDIA ASSURANCE co. LTD. vs GUDE AND OTHERS. Relying upon these two judgments, he requests this Court to set aside the award.

( 4 ) THE question that arise for consideration of this Court in thisappeal are: 1. Whether the use of tractor and trailer for construction of a farm house of the owner can be said to be used for other than agricultural operations? 2. Whether the compensation awarded by the commissioner is in accordance with the Workmen's compensation Act?

( 5 ) IN regard to the first question, though the appellant contendsthat the vehicle was used for transporting size stones for construction of building by a third party has not been proved by the insurance company. On oath, claimants have said that they sustained injuries while transporting size stones in order to construct farm house of their employer. This fact is not disputed by the employer. On the contrary, employer has supported the case of the claimants. Evidence of one Vijaya Kumar who has been examined on behalf of the appellant-company cannot be considered since he has