S.G. Shah, J.

The appellants herein are original claimants before the labour court and Commissioner under Workmen's Compensation Act, 1923 at Himmatnagar in W.C. Case No.168 of 1996 (Old No.378 of 1993) claiming Rs. 86,764/- towards compensation for the death of Shankerbhai Kavabhai Katara.

2. The case of the appellants claimants before the Commissioner was to the effect that on 24.4.1991 when deceased victim was called for loading stones from quarry into truck No.GRN6025, because of accident while loading heavy stones in the truck, he received serious injuries which resulted into his death because of heavy bleeding. The appellants have claimed that deceased was getting Rs. 140/- per day and in all Rs. 1,000/- in a month considering total number of truck load being loaded and, therefore, claimed compensation from the owner of the truck and its insurance company. However, pending trial, claimants have let-go their claim so far as penalty is concerned, by filing a Pursis to that effect on 28.11.2003 at Exh.44.

3. Such claim petition was resisted by the respondents opponents being owner and insurer of the vehicle in the accident. The sum and substance of the respondents is to the effect that deceased victim was not labourer on the truck but he was labourer in the quarry and, therefore, neither the owner nor the insurance company can be held liable to pay compensation to the claimants.

4. After recording evidence from both the sides, the Commissioner has dismissed the application of the appellants claimants by impugned judgment and order dated 6.3.2004.

5. Being aggrieved by rejection of claim for compensation by impugned judgment appellants being original claimants have preferred this appeal.

6. Therefore, now, we have to scrutinize the entire Record & Proceedings so as to verify that whether appellants are entitled to compensation or not and, thereby, whether Commissioner has properly appreciated the evidence or not and whether he has committed any error of law or not.

7. Relying upon the available proceedings on record, the Commissioner has framed as many as 9 issues, but amongst them, 6 issues were decided against the appellants claimants though issue No.1 is decided in favour of the appellants that deceased victim was workman and entitled to compensation under the Act. However, so far as employee by truck owner is concerned, Commissioner has came to the conclusion that victim was not employed by truck owner and, therefore, claim is rejected.

8. Unfortunately, though Commissioner has decided the issue No.8 in favour of the claimant and held that deceased victim was workman of the quarry owner, in that case, commissioner has failed to join the quarry owner as opponent and to pass appropriate order against him to pay compensation to the widow and legal heirs of the deceased victim of such incident. Therefore, to that extent, the impugned judgment is certainly vulnerable and needs to be scrutinized properly.

9. So far as issue nos.6 and 7 is concerned, it seems that the Commissioner has taken a short cut by making a haste in stating that since claimant is not entitled to compensation, they are not entitled to penalty and interest also, though, claim for penalty has already been let-go by the claimants. The Commissioner has also failed to appreciate that irrespective of entitlement of compensation from appropriate litigant, the claimants have certainly proved the earning activities and income of the deceased victim. However, the Commissioner has held that claimants have failed to prove that deceased was earning Rs. 1,000/-.

10. In support of rival claim, on one hand, petitioner has adduced certain documentary as well as oral evidence, whereas, on other hand, respondents are solely relying upon their pleading and cross examination of appellants' witnesses.

11. The appellants claimants have examined Kavabhai Khemaji Katara as PW-1 at Exh.40, who is father of the deceased victim. Witness is 60 years old labourer and residing at Village