1. The appellant / third opposite party has preferred the present appeal against the Order dated 22.10.2008, made in W.C.No.114 of 2006, on the file of the Commissioner for Workmen's Compensation-1 / Deputy Commissioner of Labour-1, Chennai-6.

2. The short facts of the case are as follows:-

The applicant had filed a claim petition in W.C.No.114 of 2006, on the file of the Commissioner for Workmen's Compensation-1/Deputy Commissioner of Labour-1, Chennai-6, claiming compensation of a sum of Rs.5,00,000/-from the opposite parties for the injuries sustained by him in an accident arising out of and while doing his duty under the employment of the first opposite party.

3. It was submitted that the applicant was working as a Driver under the first opposite party and that he was the driver of the Ashok Leyland Vehicle bearing chassis/engine No.MDE563814/MDH 333418 (Model 1613H/I), belonging to the second respondent. Further, it was submitted that on 12.09.2005, at about 03.00 p.m., when he was driving the vehicle near Guntur Veeravathanam bridge, some buffaloes had suddenly crossed the road and hence the applicant, in order to avoid collision of vehicle with the buffaloes, had applied sudden brakes, due to which the vehicle had run into a ditch on the side of the road. As a result, the applicant had sustained fracture of bone in his right arm and also sustained other injuries over his body. He was admitted at Government Hospital, Narsaraopet, wherein first aid was given and subsequently, he was admitted at Government Stanley Hospital, wherein he received treatment as an inpatient from 13.06.2005 to 17.10.2005. Hence, the applicant had filed the claim application against the respondents. The first opposite party is the contractor under the second opposite party, who is the owner of the vehicle and the third respondent is the insurer of the second respondent's vehicle.

4. The first opposite party, in his counter affidavit, had submitted that the claimant was working under him as a daily wage labour as a driver and that he was paid a sum of Rs.2,261/- per month as salary and that he had sustained injuries in the accident that occurred on 12.09.2005. It was submitted that as the first respondent had taken a workmen's compensation policy with the third opposite party only the third opposite party is liable to pay the compensation assessed.

5. The third respondent Insurance Company, in their counter affidavit, had submitted that no employer-employee relationship existed between the first respondent and the applicant and that the applicant did not work as a casual driver under the first respondent. The averments made in the claim petition that the applicant had sustained injuries in an accident arising out of and while doing his duty under the employment of first respondent was also not admitted. It was submitted further that the applicant has to prove his age, income and also prove that the second respondent's vehicle had been insured with them through documentary evidence.

6. On considering the averments of both sides, the Deputy Commissioner of Labour had framed five issues for consideration namely:

i. Did the applicant sustain injuries in the accident arising out of and while doing his work under the course of employment under the first opposite party and while driving the vehicle owned by the second opposite party?

ii. What is the age and income of the applicant?

iii. What is the loss of earning capacity sustained by the applicant?

iv. What is the quantum of compensation, which the applicant is entitled to get? and

v. Who is liable to pay compensation among the opposite parties?

7. On the applicant's side, the applicant was examined as P.W.1 and six documents were marked as Exs.P1 to P6 namely discharge summary of Government General Hospital, medical treatment records issued by Government Stanley Hospital, copy of driving licence, disability certificate and X'ray. On the first opposite party's side, one Krishnamoorthy was ex