1. Heard the learned counsel for the appellant and respondents.

2. The appellant-insurer in W.C.N.F. No. 284/2007 on the file of Labour Officer and Commissioner for Workmen’s Compensation, Bagalkot, (herein after referred to as ‘Commissioner’ for short) has come up in this appeal impugning the judgment and award dated 30.09.2008.

3. The status of the parties will be referred to as per their status before the Court below.

4. The facts of the case are that:

The injured-claimant, namely Muttappa was working as coolie under the respondent No. 1 – Ashok S/o Timmanna Narappanavar in the tractor and trailer bearing registration Nos. KA-29/T-5454/T-5456 and was getting wages of Rs. 4,000/- per month and bhatta of Rs. 50/- per day and he was aged about 35 years at the time of the accident.

5. On 23.05.2007, the petitioner as per the directions of the 1st respondent was loading sugarcane in the land of Basanagouda. When loading the sugarcane into the tractor and trailer, all of a sudden, the driver of the said vehicle drove the vehicle in a rash and negligent manner and the said vehicle met with accident at about 11:00 a.m. As a result of which, the petitioner sustained grievous injuries. Immediately he was admitted to Kerudi Hospital and Research Center, Bagalkot and treated by Dr. M. Narayan (Consult Surgeon) and after conducting operation, rod and nails were affixed to the fracture portion and still he has not recovered and he is under medical treatment and he has become permanently disable and has spent Rs. 70,000/- for medical expenses. In view of the injuries sustained by the claimant during his employment, he filed a claim petition under Section 22 of the Workmen’s Compensation Act, claiming compensation of Rs. 4,00,000/- along with interest at the rate of 18% per annum from the respondents.

6. After service of notice, the 2nd respondent-insurer has filed statement of objections and contested the claim petition, whereas, the 1st respondent appeared but did not file his objections.

7. In support of his claim, the injured-workman, apart from filing his affidavit evidence got marked the FIR, complaint, spot panchanama, IMV report, wound certificate, charge sheet, out patient slip, disability certificate, x-ray report and driving license, as at Exs.P-1 to P-10 respectively. On behalf of the 2nd respondent-insurer, except marking the insurance policy, no evidence was let in.

8. On the basis of the pleadings of the respective parties, the Commissioner has framed as many as 5 issues and on evaluation of the oral and documentary evidence, was pleased to held that the ‘Workman’ had sustained the injuries during the course of his employment and consequently allowed the claim petition, awarding compensation of Rs. 1,31,241/- with interest at 12% per annum from one month after the date of award till its deposit. It is this award which is under challenge in this appeal by the insurer.

9. Shri K.L. Patil, learned counsel for the appellant – insurer vehemently contended that the impugned judgment and award is illegal, arbitrary, excessive, contrary to the evidence on record and not sustainable in law. Further he contended that the petitioner claimant was a gratuitous passenger and hence he is not entitled to claim compensation, as the accident did not occur during the course of his employment. It is further contended that the claimant has not produced any iota of evidence to establish that he is having salary of Rs. 4,000/- and batta of Rs. 50/- per day. In the absence of proof of evidence the Tribunal has erroneously passed an order by determining the income of the injured at Rs. 3,000/- per month and awarded the compensation in a sum of Rs. 1,31,241/-. On these grounds, he prays for setting aside the impugned judgment and award passed by the Commissioner.

10. Per contra, Shri Siddappa Sajjan, learned counsel for the Workman, placing reliance on the Division Bench judgment of this Court in the case of National Insurance Company Limited vs. Shr