1. Second respondent insurance company in CR.No.59/2006 on the file of Commissioner for Workmen’s Compensation. Tumkur has come up in this appeal challenging the order dated 28.8.2009 passed therein. Earlier when this appeal had come up for admission instead of admitting the same notice was ordered and lower court record was called for to consider the appeal for final hearing. Accordingly, when this matter came up today though it is listed for admission, since the lower court record is received and respondent/claimant is also duly served, with the consent of counsel for both parties the appeal is taken up for final disposal.

2. Brief facts leading to this appeal are:

First respondent herein who was claimant before Commissioner is said to have suffered certain injuries in an accident which has taken place on 21.1.2002 at about 2.30 p.m. on N.H. involving tractor trailer bearing No.KA-06/A-91 and A.1758. The undisputed facts in this appeal are that 2nd respondent herein, namely Thangaraju, who is 1st respondent before Commissioner is owner of aforesaid tractor trailer. The said tractor trailer is insured with 2nd respondent before Commissioner, appellant herein. It is not in dispute that said tractor trailer met with an accident on 21.1.2002 on N.H. 4 while it was carrying sized stones from Muddakkanhalli quarry.

3. On going through the grounds of appeal the substantial questions of law that arise for consideration in this appeal are.

1) Whether Commissioner was justified in accepting that claimant Ranganatha was working as loader and unloader under Thangaraju in tractor trailer bearing No. KA-06/A-01 and A-1758?

2) Whether Commissioner has properly appreciated the evidence available on record before considering the petition filed by claimant seeking awarding of compensation?

4. Heard the counsel for appellant and respondent/claimant. Perused the grounds of appeal, pleadings, oral and documentary evidence available on record in the light of the finding of Commissioner in the order impugned. On reappreciation of the same this Court answer the aforesaid substantial questions of law in the negative for the following:

REASONS

The lower court record secured from the office of the Commissioner for Workmen’s Compensation discloses that claim petition filed by claimant is the second claim proceedings initiated by claimant. First of that was filed in MVC.No.451/2002. Admittedly, as on the date of accident claimant Ranganatha was a minor aged about 17 years. Claim petition in MVC.No.451/2002 was filed under Section 166 of Motor Vehicles Act, wherein it was contended that Ranganatha was a vegetable and milk vendor and also an agriculturist. It was stated therein that on 21.1.2002 at about 2.30 p.m., when he was proceeding towards Sira town along with tomato and chili bags to sell the same in Sira town, he noticed aforesaid tractor trailer belonging To Thangaraju which was proceeding from quarry in Muddakkanahalli village towards Sira town carrying a load of sized stones. It is stated that claimant got into said tractor trailer along with his goods and while he was traveling towards Sira town, said tractor trailer met with an accident resulting in injuries to claimant and others in said tractor trailer. This pleading in column No.22 of aforesaid claim petition is also supported by police document, namely, FIR which is lodged on 21.1.2002 at 4.30 p.m.,i.e., immediately within two hours from the time of accident. Incidentally, said claim petition was filed by the father of Ranganatha, as his next friend.

5. The contents of said petition also disclose that Rangantha war earning a sum of Rs.4,500/-p.m., from out of the activities of vegetable and milk vending and agricultural work. Incidentally, column No.4 of said claim petition did not disclose the claimant was working either as agricultural coolie or in any other capacity under any person. In column No.5 meant for the name of employer, it was left blank, as if he is doing a