JUDGMENT :

The appellant/insurance company is before this Court in these two appeals under Section 30(1) of the Employees Compensation Act, 1923 challenging the judgment and award dated 24.01.2011 passed by the Commissioner for Workmen Compensation, Kolar (hereinafter referred to as 'the Commissioner’ for short) in WCA No.56/205 in MFA No.2914/2011 and in WCA No.57/205 in MFA No.2915/2011.

2. The brief facts of the case are that:

The claimants in both the claim petitions were before the Commissioner claiming to be coolies engaged by respondent No.2/owner of the lorry bearing registration No.KA07/4453. It is stated that on 07.07.2005 in the midnight at 1.30 a.m., they were traveling in the said lorry along with other three persons from Mulabagal to Bangalore to unload the sand belonging to Sri.Ramappa and Sri.Gopalappa. After unloading the sand, while they were returning from Bangalore to Mulabagal, the accident took place due to the rash and negligent driving of driver of the offending lorry. As a result of which, they suffered injuries. Immediately after the accident, the claimants were shifted to R.L.Jalappa hospital wherein they took treatment as inpatients. It is the case of the claimants that they were earning Rs.4,000/p.m. Since they had suffered injuries during the course and out of employment, they filed claim petitions before the Commissioner.

3. On service of notice, the insurance company/2nd respondent therein appeared before the Commissioner and filed their objections contending that the claimants were not the employees under 2nd respondent/owner of the offending lorry. Hence, the claim petitions are not maintainable.

4. In support of their claim, the claimants got examined themselves as P.W.1 and P.W.2 and got marked the documents as Ex.P1 to Ex.P5 in WC/NFC56/2005 and Ex.P1 and Ex.P2 in WC/NFC57/2005.

5. Based on the pleadings of the parties, the Commissioner for Employees Compensation Act framed as many as six issues which are as follows.

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The first issue was whether the petitioners/claimants are workmen as defined under the Employees Act?

6. The Commissioner answered all the issues in favour of the claimants and awarded total Compensation of Rs.1,70,389/and Rs.1,35,025/respectively to the claimants and fastened the liability on the second respondent/insurance company. Aggrieved by the said judgment and award, the second respondent/insurer is before this Court in these two appeals.

7. Heard the learned counsel for the appellant/insurance company and respondents/claimants and perused the appeal papers as also the lower court records.

8. Learned counsel for the appellant/insurance company has raised only one contention that the claimants have not established that they were engaged by the 2nd respondent/owner of the offending lorry and as the claimants have failed to establish employer and employee relationship, the Commissioner ought to have rejected the claim petitions. He submits that there is no evidence to show that the claimants are employees of the first respondent. In the cross-examination, the claimants have stated that they are not aware of the name of the owner and who has engaged them. In the absence of any evidence, the Commissioner could not have held that the claimants are employees under the second respondent/owner of the lorry and that they have established the relationship of employer and employee.

9. Per contra, learned counsel for the respondents/ claimants would submit that they were employed by the 2nd respondent and they were working as coolies for more than two years in the said lorry. Learned counsel also submits that the FIR would clearly show that they were the employees under the second respondent/owner, which fact has been deposed in the evidence. Further he contends that the appellant/insurance company has not produced any contrary evidence to say that the claimants are not employees of the first respondent.

10. On hearing the learned counsel for the parties and on going through the records