K. HARILAL, J.

1. The National Insurance Company Limited, the insurer in WCC 12/2005 on the file of the Commissioner for Workmen's Compensation, Kollam has come up in appeal challenging the judgment granting an amount of Rs.3,79,120/- to the respondents herein. The case of the applicants is that on 25.4.2004 at about 11.20 p.m when the deceased was driving an auto rickshaw bearing registration No. KL-02 F5378 he lost his control and hit on the divider and capsized. Immediately he was taken to District Hospital where he succumbed to the injuries on 1.5.2004 at 6.05 p.m. According to the applicants, the accident was arising out of and in the course of employment and thereby the first opposite party is liable to pay compensation for the death caused by the accident. Further it was averred that the deceased was aged 38 years at the time of accident and he was employed as driver of the auto rickshaw owned and possessed by the first opposite party.

2. The first opposite party resisted the said claim for compensation contending that the deceased was a neighbour of the first opposite party and he has taken the auto rickshaw from him for travelling, as his own auto rickshaw was unde