A taxi driver who is not subject to the control of the owner of the taxi and who is free to use the taxi as he pleases is not a workman employed by the owner within the meaning of the Workmen's Compensation Act.

( 1 ) THIS is an appeal under the Workmen's Compensation Act. The appellant is the widow of the workman called Abdul Rahaman. Abdul Rahaman, the Workman, who was a driver of a taxi cab, met with an accident on the 17th August 1957 and he died as a result of that accident. On or about the 17th August, 1957 at the time of the accident he was driving a taxi being taxi cab No. WBT 1558 owned by the opposite party Qazi Zahirirddin Mohammad Babar. It is said that while he was driving the said taxi, he lost control and in the consequence the taxi dashed against a road-side tree injuring the deceased workman seriously and leading ultimately to his death.

( 2 ) THE Commissioner of Workmen's Compensation, who heard the case, decided in favour of the opposite party and came to the conclusion that the deceased was not a workman employed by the opposite party within the meaning of Workmen's Compensation Act and, as such, no compensation was payable.

( 3 ) THE appeal raises a short but important point whether a taxi driver who uses the car of a owner proprietor is a workman within the meaning of the Workman's Compensation Act and whether the owner proprietor of the taxi can be said to be his employer so as to have a liability for compensation to such a driver under Section 3 of the Workmen's Compensation Act, Although the question raised is important, the facts unfortunately in this case are meagre, inadequate and insufficient to support the claim for compensation.

( 4 ) BEFORE proceeding with the determination of the point involved the short evidence in the case on the question of the nature of employment, may be briefly summarised. There was no evidence on behalf of the claimant. The only evidence was given by witness Ahmed whose maternal uncle owned the taxi. His evidence briefly is that this driver used to take out the cab on alternate days on commission basis. The driver used to sign the garage book and take out the car. His further evidence is that according to mileage the driver got 121/2 per cent of the collections. He says in his evidence that there was no control over the driver and he could take out the taxi on hire to any place he liked and he plied wherever he liked. " At night for some time there was a man given with the driver presumably to watch and see what the driver received. It is his evidence that this watcher was paid Re. 1/-, but even then this night watcher left after 9 p. m. It is also his evidence that the taxi naturally always ran on a meter. That is all the evidence.

( 5 ) IT is unfortunate that the evidence is not more adequate in this case. For instance, it is not in evidence whether the car was to be taken out at a particular time in the morning and had to be returned that day at night by any particular hour. It is not in evidence whether the car had to be returned at all during the twenty four hours or whether the taxi driver could ply the car day and night, Again it is not in evidence that although he used to come on alternate dates, whether he was free to come or not and whether the driver could absent himself for any number of days consecutively or otherwise. On the evidence it is also possible for the driver not to take any passenger at all. All that he has to do is to get 121/2 per cent of the collections for himself and to pay the balance to the owner of the taxi. What happens when he makes no collection, is not in evidence. It is not in evidence who pays for the petrol. Neither the garage register nor the receipts by the driver in respect of collections are in evidence.

( 6 ) THE onus of proving his case rests upon the applicant and upon nobody else and if he leaves the case in doubt as to whether these conditions were fulfilled or not, where the known facts are equally consistent with their having been fulfilled or not, it has been said that the applicant has not discharged the onus which lies upon him. It is well settled now that the onus is upon the claimant to prove the fac