JUDGMENT :

KAUSHAL JAYENDRA THAKER, J.

1. Heard Bhanu Bhushan Jauhari for the appellant and Sri Shekhar Srivastava for the claimant.

2. By way of this appeal, the appellant has felt aggrieved by the award passed by Workmen Compensation Commissioner, Meerut, in WCA No. 139 of 1999 awarding a sum of Rs. 1,29,168/-in favour of the respondent.

3. While admitting this appeal, this Court did not frame any question of law but ordered that the questions of law framed by the appellant be considered for decision. The appellant has framed the following questions of law:

“(i) Whether the claimant is not entitled for any compensation on the ground that the claimant failed to prove his employment.

(ii) Whether the Workmen Compensation Commissioner committed manifest error of law in assessing the loss of earning capacity as 50% in the absence of any disability certificate and in the absence of any evidence of any medical practitioner.

(iii) Whether the Workmen Compensation Commissioner committed error of law in awarding the compensation as per Section 4 (1)(c)(II) of the Workmen Compensation Act instead of treating the injury to be under Section 4(1) (d) of the Workmen Compensation Act?

(iv) Whether in the absence of disability certificate and in the absence of evidence of any medical practitioner the Workmen Compensation Commissioner can not award any compensation to the complainant for the injury sustained to him?

(v) Whether the learned W.C.A. Commissioner wrongly shifted the burden of proof on non-employment of the claimant upon the appellant?”

4. The parties are referred as respondent-original claimant-employee/appellant-original opponent-employer.

5. It is alleged by the claimant in the application that since 1996 he was working as a helper on the cutter machine. On the fateful day i.e. 10.2.1999 when he was working on the said machine, there was an employment injury for which the co-employee and owner got him admitted in Jaswant Rai Speciality Hospital. The expenses for treatment were borne by the employer. When the claimant was injured, his age was 20 years. The wages were Rs.2,000/-per month. The claimant had sent a notice on 25.6.1999 to the employer but no reply nor any amount was paid and, therefore, he preferred the said application. The summons were issued. The claimant filed all necessary documents namely medical certificate of Jaswant Rai Speciality Hospital, the notice which was sent the respondent and was received by employer.

6. The Counsel for the appellant has submitted that the Commissioner came to a wrong conclusion that relationship of employer and employee once denied had to be proved by the employee which was not proved and the burden of proof has been wrongly shifted on the appellant. The documentary evidence was produced so as to show that the claimant was not an employee. Just because there was non-issuance of appointment letter, it can not be said that he was appointed.

7. It is submitted by Counsel for appellant that neither Pramod Kumar nor Ramesh Chandra Yadav, who had got the claimant admitted were examined. The earning capacity under Section 4 of Workmen Compensation Act has to be proved as loss of capacity. It is further submitted that the Commissioner has misdirected himself on the facts and law.

8. As against this, learned Counsel for the claimant has submitted that the claimant had proved that he was in employment. There was employment injury for which he has relied on the Division Bench judgment in New India Assurance Company Ltd. vs. Mohd. Aslam, 2003 Law Suit (All) 293. More particularly paragraph nos. 7 and 8 so as to contend that the appellant does not deserve to be allowed and sans merits and also has relied on the decision of the undersigned in the case of New India Assurance Company Ltd. vs. Naresh Kumar and Others, 2018 (157) FLR 1031. As far as question no. 1 is concerned, it is a pure question of fact as to whether the employment was the so called question of law are in fact question of fact.

9. The respond