The main legal point established in the judgment is the determination of employment status under the Workmen's Compensation Act and the calculation of compensation for injuries and disability suffered in the course of employment.

S. Siri Jagan, J.

The appellant in this MFA is the applicant in WCC No. 82 of 2005 before the Commissioner for Workmen's Compensation, Thiruvananthapuram. He suffered injuries, allegedly while he was working as a loading and unloading employee in a lorry owned by the first respondent and insured with the second respondent, on account of the landslide in a quarry and rocks falling on him and others in the course of such employment. He suffered injuries and disability in the accident. He filed the application seeking compensation from the first respondent for the disabilities suffered by him in the accident. The Workmen's Compensation Commissioner, after taking evidence, dismissed the application on the ground that the appellant was not a worker in the lorry owned by the first respondent but was a worker in the quarry. The said order of the Workmen's Compensation Commissioner is under challenge in this appeal. The appellant's contention is that the appellant had adduced evidence in the form of deposition of himself as well as a co-worker to the effect that both the witnesses were employees in the lorry. Although the respondents cross-examined them elaborately, the respondents could not shake the evidence of the appellant and the co-worker. The respondents did not adduce any evidence in support of their contention that the appellant was the worker in the quarry and was not a worker in the lorry. Therefore, the Commissioner could not have validly held that the appellant was not a worker of the first respondent. Consequently, the appellant is entitled to claim compensation from the first respondent himself is the contention of the appellant. It is further submitted that the appellant had adduced evidence to show that he was earning more than Rs. 4000/- per month and he had produced Ext. A3 disability certificate proving disability to the extent of 30%. Therefore, the appellant is entitled to appropriate compensation calculated on that basis, is the further contention raised.

2. The counsel for the first respondent would contend that the evidence on record conclusively proves that the appellant was not an employee of the lorry owned by the first respondent but was actually the worker in the quarry itself from where the lorry was loading rubbles. According to them this is fully supported by the First Information Statement attached to Ext. R1 copy of the FIR registered by the police. In the First Information Statement, it has been categorically stated that the appellant was an employee of the quarry, is the contention raised. It is also submitted that the appellant has not produced any documentary evidence to prove that the appellant was a worker in the lorry.

3. We have considered the rival contentions in detail.

4. It is common knowledge that usually loading and unloading workers will not be given any appointment orders by their employers for engaging them. In fact, such workers will not get any document from the employers proving their employment. Therefore, the mere absence of documentary evidence to prove the appellant's employment with the first respondent does not conclusively prove that the appellant is not an employee of the first respondent. The appellant gave evidence himself and categorically stated that he was a loading and unloading employee employed by the first respondent in his lorry, which was insured with the second respondent. The respondents have elaborately cross-examined him. But, they could not shake his evidence. The appellant supported his evidence by the evidence of a co-worker examined as AW 2. He categorically stated that he was an employee under the first respondent in his lorry and that the appellant was a co-worker in the very same lorry alongwith him. He was also elaborately cross-examined by the respondents and they could not shake his evidence also. The respondents did not chose to adduce any evidence whatsoever before the Commissioner to prove their contention that the appellant was not employ