1. This appeal has been preferred by the United India Insurance Company Limited disputing their liability of compensating the legal heirs of the deceased on the ground that the vehicle insured was to involved in the accident and that the application preferred by the claimants before the Tribunal was not in accordance with Section 22 (2)(b) of the Workmens Compensation Act, 1923.

2. Application was preferred under Section 22 of the Act before the Commissioner claiming compensation for the fatal accident caused to deceased Sivan alias Sivasankaran alleged to be during the course of his employment. Claimants submits that deceased Sivan was a head load worker of the first respondent by name Saidalavi and that while he was loading timber in a lorry bearing registration No.KL-9D/576 belonged to Saidalavi on 4.4.1998 sustained serious injuries due to the fall of timber on his body and he succumbed to the injuries. It was stated that the deceased was getting wages of Rs.4,000/- and that he was aged 30 years at the time of accident. Further it is also stated that the vehicle was insured with the third opposite party.

3. First applicant herself was examined as AW-1 and co-worker Devadas was examined as AW-2. Exts.A1 to A6 are the documents produced and marked on the side of the applicants. First opposite party was declared ex-parte. Second opposite party entered appearance and denied employer-employee relationship between the first opposite party and deceased Siva. It is also stated that the second opposite party was never informed of the accident. Third opposite party which had insured the vehicle also filed written statement on 2.2.2007 and argument note was also submitted by the advocate. It is stated that the lorry KL-9D/576 was never involved in the accident and no intimation was received by the insurance company about the alleged accident. Accident is stated to have occurred on 4.4.1998. Further it is also pointed out that there is nothing to show that Saidalavi had engaged the deceased at any point of time and death had occurred during the course of employment.

4. We may at the outset point out that though the accident had occurred on 4.4.1998 application claiming compensation under Section22 of the Workmens Compensation Act was preferred on 24.12.2004 with a petition for condonation of delay. Delay of more than six years was condoned by the Commissioner without issuing notice to the third opposite party with whom lorry KL-9D/576 was insured. Further, no acceptable evidence was adduced by the claimant to show involvement of the lorry KL-9D/576 in the accident occurred on 4.4.1998. No evidence was adduced to show that deceased Sivan was the employee of Saidalavi, owner of the lorry. On the death of the deceased a case was registered by the policy and F.I. statement was given by one Adbulla who was with the deceased while loading the timber. F.I statement submitted by the policy which was marked as Ext.A1 in Crime No.138/98 and stated as follows:

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There is no reference whatsoever with regard to the involvement of the lorry bearing registration number KL-9D/576 in the F.I. statement. No materials have been produced to show that Sivan was an employee of Syedalavi, owner of the lorry. Ext.A2 is the scene mahazar in which also there was no reference whatsoever to the lorry in question. After a period of more than six years claim petition was preferred. For the first time it is stated in the claim petition that he accident had occurred while loading the timber in a lorry KL-9D/576 and that too during the course of employment and that the deceased was the employee of Syedalavi, owner of the lorry. We have therefore no hesitation to state that the present application is an after though and filed perhaps in collusion with the first opposite party. Saidalavi who remained ex-party. Claimants somehow or other wanted to rope in the insurance company, so that the amount could be recovered from the insurance company. We may