The main legal point established is that the Insurance Company is bound to indemnify the employer under Section 147(1) Proviso of the Motor Vehicles Act.

1. First Appeal is admitted. Notice after admission, made returnable forthwith. By consent, taken up for final disposal.

2. Substantial questions of law were already formulated as the parties had consented for arguing for final disposal at admission stage.

3. Heard both sides.

4. The appeal is filed by the appellant/employer, who is owner of the vehicle involved in the motor vehicle accident, for challenging the judgment and order of Commissioner appointed under the Workmen's Compensation Act, Civil Judge, Senior Division, Osmanabad. The decision is given in Application (WCA) No. 46/2008. Compensation and penalty is awarded in favour of the present respondents-claimants but the Insurance Company is exonerated. As the Insurance company is exonerated, the decision is challenged by the appellant employer.

5. The deceased Jaihind was husband of original claimant Chandrakala. The original claimants 2 and 3 are issues of Jaihind and claimants 4 and 5 are parents of Jaihind. It is the case of the claimants that Jaihind was working on Truck tipper bearing No. MH- 25 B-7920 and it was insured with respondent No.7-Insurance Company at the relevant time. It is the case of the claimants that on 11.05.2008, deceased was attached to this vehicle as first driver. It is contended that at about 10.30 p.m. in village Balsur, on Omerga Balsur road, when Tipper was proceeding towards fuel pump to fill diesel, accident took place. It is contended that second driver was driving the said tipper at the relevant time and the accident took place as the tipper left road and went into ditch due to which deceased fell down and came under the truck. Jaihind died on the spot.

6. It is the case of the claimants that age of Jaihind was 38 years and original respondent No.1/appellant, employer was paying Rs.4000/- per month by way of salary and Rs.100/- per day as Bhatta to the deceased at the relevant time. Compensation of Rs.5 lac was claimed.

7. Employer filed written statement before the Commissioner and he admitted that the deceased was engaged by him as the first driver of the aforesaid tipper. He denied that he was paying monthly Rs.4000/- and daily Rs.100/- to the deceased. The employer took alternative defence that the vehicle was insured with original respondent No.2- Insurance Company at the time of accident and the Insurance Company is bound to indemnify the employer.

The Insurance Company filed written statement. The fact of accident is not disputed. Insurance company contended that there was no relationship of employer and employee between the deceased and respondent No.1. The other contentions regarding income of deceased and daily allowance were also disputed by he insurance company. Alternate defence of breach of condition of policy was taken and it was contended that the driver was not holding valid and effective driving licence at the relevant time. It is contended that no premium was paid to cover the risk of two drivers and therefore it cannot be held responsible to pay compensation.

8. Before the Commissioner, claimants examined widow of the deceased. One officer from RTO was examined and one Police Officer who was involved in the investigation of the matter was also examined. On the other hand, the employer examined one witness by name Sudhir Mane. This witness was cross examined by the counsel for the Insurance Company. The Insurance Company examined one witness Kiran to prove the terms and conditions of the policy. The policy was produced at Exh. 54.

9. Following substantial questions of law are involved:

i. Whether there was material to hold that the monthly salary of deceased was Rs.4000/- ?

ii. Whether the Commissioner has committed error in exonerating the Insurance Company ?

10. It can be said that the income of the deceased was not within the knowledge of the Insurance Company and so, the evidence given by the claimants and the evidence given by the original respondent No.1 Employer can be considered in that regard.

The evidence of em