( 1 ) THIS appeal is directed against the judgment and award passed by the learned Commissioner for Workmen Compensation, at Jamnagar, on 15-9-1982, in a Workmen Compensation Application No. 18 of 1979. Thus, the appellate has invoked the aids of the provisions of Sec. 30 of the workmens Compensation Act, 1923 ("act" for short, hereinafter ).

( 2 ) THE facts leading to the rise of the present appeal may be, shortly, stated at this juncture so as to appreciate the merits of the appeal and challenge against it.

( 3 ) THE present appellant is the original opponent No. 1-Company, present respondent No. 1 is the original claimant and present respondent no. 2 is the original opponent No. 2-Contractor. The claimant, Koli Gordhan, filed the aforesaid application for compensation under Sec. 3 of the Act. The claimant, inter alia, contended in his compensation application that he was a workman of the original opponents. That during the course of the employment with the opponents, on 23-3-1977, the claimant, while he was spreading sand on rail, fell down on rail and his hand came under the wheel of the loco engineer passing at that time. Thus, he contended that he sustained serious injuries on his hand. According to him, he sustained 69 percent permanent partial disablement on account of the said injuries. He was earning monthly wages of Rs. 151-50 Ps. He was a workman and he sustained personal injuries by an accident arising out of and in the course of his employment with the opponents. Therefore, he claimed an amount of Rs. 13,876-80 Ps. as compensation. Notice was served by the claimant on the opponents. It was complied with. The claimant also claimed for penalty at the rate of 50 percent and interest at the rate of 6 percent per annum from the date of injury. Thus, the claimant claimed compensation, in all, for a sum of Rs. 13,876-80 Ps. with penalty and interest from both the original opponents.

( 4 ) OPPONENTS appeared and resisted the claim petition. Original opponent no. 1-Company filed its written statement at Ex. 22 while original opponent no. 2-Contractor filed its separate written statement at Ex. 24. The opponents, inter alia, contended that the claimant did not sustain personal injury on account of accident out of and during the course of employment on 23-3-1977. In that, it was contended that it was not the duty of the claimant to spread sand on rail. It was further alleged that the claimant had attempted to get a ride in a running loco despite the definite instruction to the labourers not to get in a running loco. The claimant, in an attempt to get a ride in a running loco, sustained injuries. Therefore, the claimant is not entitled to compensation as the act of taking a ride on a running loco was contrary to the specific and definite instructions. Original opponent No. 1-Company also raised a specific contention that the injured claimant was not employed in its employment. According to the contention of the Company, the claimant was an employee of opponent No. 2-Contractor. In short, the entire claim petition came to be resisted by both the opponents.

( 5 ) IN view of the pleadings of the parties, issues were framed at Ex. 25.

( 6 ) THE claimant relied on his evidence at Ex. 32 and also on the evidence of Dr. M. M. Oza of Ervin Hospital, Jamnagar at Ex. 38. He also relied on the evidence of one co-worker Limba Khima at Ex. 39. Opponent No. 1 relied on the evidence of one K. N. Gandhi at Ex. 46 and one witness Manvant Jashvant at Ex. 48. They also relied on the evidence of loco driver. Manji Khima, at ex. 54 and also on the evidence of one witness, a foreman, Siddi Hamir, at ex. 55. Opponent No. 2 relied on the evidence of Ravji Samat, Ex. 57.

( 7 ) RELYING on the aforesaid oral and other documentary evidence on record, the learned Commissioner for Workmens Compensation came to the conclusion that the claimant had sustained personal injuries arising out of and in the course of employment with the opponents.