DINESH CHANDRA SOMANI, J.

1. The instant appeal has been preferred by the non-claimant No.2/appellant under Section 30 (a) (aa) of the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'Act') against the order dated 6.9.2004 passed by the Commissioner, Workmen Compensation, Jaipur City, Jaipur (hereinafter referred to as the 'Commissioner') in Case No.WCC(F) 10/1999 titled as Mohd. Hameed & Anr. v. Munna & Anr., whereby the learned Commissioner has ordered the non-claimant No.2/appellant and non-claimant No.1/respondent No.3 to pay a sum of Rs. 3,22,920/- as compensation along with interest @ 9% per annum from 29.6.2003 till one month after the date of the award (i.e. till 6.10.2004) and in case the amount of award is not paid within one month from the date of the award, further interest @ 12% per annum from 6.10.2004 till payment, to the claimants No.1 & 2 (respondents No.1 & 2) and non-claimants No.1 & 2 have been made liable for the said award amount severally and jointly. An amount of Rs. 32,292/- has also been imposed as penalty and the employer i.e. non-claimant No.1 has been made liable for the same.

2. Skeletal material facts necessary for disposal of the appeal are that a claim petition was filed by the claimants/respondents No.1 & 2 on 11.2.1999 before the learned Commissioner mentioning therein that on 29.5.1996, the deceased-Mohd. Nafees Miyan was employed by the non-claimant No.1/respondent No.3 as driver of his car bearing Registration No.RJ-14/C-545 and on that day three person namely; Devendra, Raju and Bharat Verma came and asked him to go to Alwar with them with the car. It was also averred that the deceased first of all did not agree to it, but when they told him that the owner of the car Munna had instructed them to take the car to Alwar, he agreed to go with them. The deceased proceeded with them in the car and thereafter he has not been heard of by anybody. It was further averred that the deceased was getting Rs. 3000/- as salary and at that time he was 25 years old. The claimants are the parents of the deceased and they claimed a sum of Rs. 2,16,910/- as compensation along with interest and penalty from both the non-claimants as the vehicle was insured with the appellant/Insurance Company.

3. After service of summons upon the non-claimants, the non claimant No.1 did not appear and has been proceeded ex-parte. Non-claimant No.2/appellant appeared before the learned Commissioner and filed written statement in which averments of the claim petition were denied and it was mentioned that it is not proved that the said driver has died, since his dead body was not found till today. It was also averred that the driver of the vehicle was not having valid driving license and that the vehicle was insured as a private vehicle while the same was being used as a taxi at that time and as such the insurance company is not liable to pay the compensation and prayed to dismiss the claim petition.

4. On basis of pleadings of the parties, eight issues were framed. The claimants produced as many as two witnesses and the non-claimant/appellant produced one witness.

5. After hearing learned counsel for the parties, the learned Commissioner decided all the issues in favour of the claimants and awarded compensation as mentioned herein above vide impugned judgment and award dated 6.9.2004. Being dissatisfied with the impugned award passed by the learned Commissioner, the non claimant No.2/appellant has preferred this appeal before this Court.

6. Learned counsel for the appellant/Insurance Company submitted that the learned trial Court has not considered material aspect of the matter that the deceased was not heard alive after the date of incident i.e. 29.5.1996 and the claim petition was filed in the year 1999, as such no presumption of the death of the deceased could have been drawn on the date when the claim petition was filed since seven years had not completed by then.

7. Learned counsel also submitted t