The importance of proving the deceased's employment status and the liability of the insurance company under the Workmen's Compensation Act.

( 1 ) THIS miscellaneous first appeal under section 30 (1) (a) of the Workmen's Compensation Act is filed by the insurer, calling in question the correctness of the judgment and award dated 25. 1. 2002 passed in Case No. CWC: cr: 132 of 2001 by the Labour Officer and workmen's Compensation Commissioner, chitradurga (for short 'the Commissioner' ).

( 2 ) RELEVANT facts necessary for determination of this appeal are: one Nagaraja said to be aged 25 years employed by the respondent No. 4 herein, to work as a cleaner in the motor vehicle being a tipper bearing registration No. KA 16-5209 owned by the respondent No. 4 herein, while in the course of employment, sustained grievous injuries in an accident that occurred on 11. 7. 2001 at about 8. 30 p. m. involving a motor vehicle, while he was crossing the road near a dhaba at maderahalli. The deceased Nagaraja, it is claimed, was mowed down by the lorry bearing the registration No. TN 28-4668, driven at a high speed and in a rash and negligent manner. The legal heirs of the deceased Nagaraja, i. e. , respondent Nos. 1 to 3 being the mother, wife and minor son filed an application under section 22 of the workmen's Compensation Act, 1923 (for short 'the Act') seeking compensation for the death of Nagaraja out of and in the course of employment under respondent no. 4. The said claim petition was numbered as CWC:cr:132 of 2001.

( 3 ) UMA, w/o Girish, the employer of deceased Nagaraja was arraigned as respondent no. 1 while the insurance company as the respondent No. 2, before the commissioner. The respondent No. 1, employer, remained absent despite having acknowledged notice of the proceedings.

( 4 ) THE insurance company had filed its statement of objections and resisted the claim of the legal representatives of the deceased Nagaraja.

( 5 ) THE Commissioner, on the basis of the pleadings of the parties framed the following five issues: " (1) Whether the applicants prove that they are the heirs of the deceased and the deceased was working as a cleaner with respondent No. 1 and died during the course of and out of employment? (2) Whether the applicants prove that the deceased was aged 25 years at the time of his death and that he was getting wages of Rs. 4,000 and batta of Rs. 75 per day? (3) Whether the applicants are entitled to compensation? If so, how much? (4) Whether the respondents are liable to pay compensation and interest? (5) What order?" the Commissioner recorded depositions of the claimant No. 1 Gujjamma, mother of deceased Nagaraja as AW 1 and marked 10 documents as Exhs. A-1 to A-10. The respondents did not lead any oral evidence but produced the copy of the insurance policy which was marked as Exh. R-1. The commissioner having appreciated the oral and documentary evidence placed before him recorded a finding that the deceased nagaraja was an employee under the respondent no. 4 and that he had died out of and during the course of his employment. The Commissioner also held that claim of monthly wage of Rs. 4,000 and batta of rs. 50 per day was said to be exaggerated and took the wages of the deceased at rs. 2,429 per month which is the minimum wage for cleaners as notified by the State government for transport workers. The commissioner after applying the relevant factor for age 25 calculated the compensation at Rs. 2,66,111 and directed the insurance company to make payment, by the judgment and award dated 25. 1. 2002. The insurer being aggrieved by the said judgment and award has come up in this appeal.

( 6 ) MR. B. C. Seetharama Rao, learned counsel for the appellant would contend that the Commissioner had committed an illegality in not appreciating the evidence in the right perspective inasmuch as there was no evidence worth the while to hold that the deceased was an employee under the insured Uma. He would also contend that the policy of insurance related to one under the Motor Vehicles Act and was with reference to the motor vehicle bearing registrat