K. Ramanna, J.

This appeal is by the insurer challenging the liability fixed on it to pay compensation of Rs.1,97 ,060/- by the Commissioner for Workmen’s Compensation, Sub-Division-1, Bellary, in WCAIF.197/99 on the ground that the 1st respondent being the wife of late Chandrachari died while traveling in goods vehicle stated to be a labourer under deceased 2nd respondent-Veerappa, but the documents produced by 1st respondent clearly show that late Chandrachari was working as a sampler in Kapataswamy Mines. Therefore, the death of Chandrachari while discharging duty under the employment of deceased 2nd respondent does not arise. Therefore, the appellant is not liable to indemnify the owner of the vehicle. Accordingly, the liability fixed on the appellant-insurer is labile to be set aside.

2. The case of the 1st respondent-claimant is that she is the legally wedded wife of late Chandrachari. Her deceased husband was workings as coolie under 2nd respondent. On that fateful day i.e., on 19-9-1997 he was traveling in a lorry bearing Registration No.ATN-871 as a labourer. Its driver Fakirappa drove the lorry in question in a rash and negligent manner consequently the lorry fell into a pit turning turtle and the said Chandrachari sustained severe injuries and later he succumbed to the injuries on the way to the hospital. The further contention of the 1st respondent is that her husband was working as a labourer and was being paid Rs.2,000/- p.m. and he was aged about 30 years. The Commissioner passed award fixing the liability on the insurer to indemnify the owner. Hence, this appeal.

3. It is argued by the learned Counsel for the appellant Sri Shivannegowda B.C. for Sri A.M. Venkatesh that the 1st respondent - claimant has not proved before the Commissioner whether Chandrachari was working under deceased original 2nd respondent- Veerappa the owner of the lorry as a loader and unloader. The documents produced by 1st respondent-claimant clearly indicate that late Chandrachari was working as a sampler who was traveling in the said lorry to go to Kapataswamy Mines. Wherefore, if he was traveling in the goods vehicle to go to Kapataswamy Mines then the question of considering that he was traveling as a loader and un-loader under deceased 2nd respondent does not arise. The liability fixed on the insurer is to be set aside and the appeal is to be allowed with costs. It is further contended that though the FIR is not a substantial piece of evidence but the FIR should not be accepted for one purpose to prove the accident and at the same time it should not be rejected for the purpose that he was working as a sampler in Kapataswamy Mines. When the 1st respondent-claimant herself has not placed any materials before the Commissioner to show that late Chandrachari was working under deceased 2nd respondent-Veerappa as a loader and unloader, the deceased 2nd respondent was placed ex-parte before the Commissioner of Workmen’s Compensation. It is for the 1st respondent-claimant to prove that deceased Chandrachary was working under deceased 2nd respondent-Veerappa and he was paying salary of Rs.2,000/- to him for loading and un-loading. Though the appellant has not cross-examined the 1st respondent-claimant on this point but it is not a ground to disbelieve the contention of the appellant. The trial Court is not right in coming to the conclusion that the appellant being the insurer is liable to pay compensation. Hence, this appeal is to be allowed.

4. On the other hand, Smt. Y. Malathi Reddy, learned Counsel for 1st respondent submitted that the contents of FIR and the evidence ofP.W.1 Le., 1st respondent-claimant clearly indicates that her husband late Chandrachari was working as a Coolie in the said lorry. She was of unsound mind and the owner and driver of the lorry was placed ex-parte before the Commissioner and she was unable to prove that her husband was working as a coolie and he was getting salary of Rs.2,000/- p.m. The FIR produced