IMPORTANT POINT
The court established that claims can be made under both the Workmen's Compensation Act and the Motor Vehicles Act, and factual findings by the Commissioner are binding unless proven otherwise.

JUDGMENT :

(Kaushal Jayendra Thaker, J.) :

Heard learned counsel for the appellant.

2. By way of this appeal, The New India Assurance Company Limited has challenged the award dated 23.8.2004 passed by Workmen's Compensation Commissioner, Assistant Labour Commissioner, Kanpur Region, Kanpur in Case No. WCA 121 of 2003 awarding compensation of Rs. 211790/-with interest at the rate of 6%.

3. The brief facts leading to the litigation as culled out from the judgment are that a claim was filed by the claimants claiming compensation for the loss of their breadwinner who admittedly was a cleaner on the vehicle owned by the the respondent - owner and on the fateful date i.e.22.5.2003 the vehicle met with an accident. A claim petition was filed before the Workmen's Compensation Commissioner, Kanpur claiming a sum of Rs. 4,23,580/- with 12% rate of interest.

4. The respondent No. 1 has admitted the fact that the deceased was employed with him and the vehicle was insured with the insurance company. After elaborate evidence being laid the learned Commissioner awarded the award in favour of the claimant. I have even perused the Annexure 2 of the investigating officer but nowhere it has been mentioned that the vehicle was not insured. A private investigation was never examined. Hence, the same could have not been relied. The FIR is very elaborate the insured truck was involved in the accident. All these being questions of facts have been considered by the Court below.

5. On perusal of memo of appeal, this Court finds that following substantial questions of law have been framed by the appellant:

''(i) Whether in view of the law that the deceased motorcyclist being a ''Third Party'' vis-a-vis the offending truck No. HR-38 C-4849, the claimant/respondent No. 1 had the remedy of filing a claim petition under Section 166 of the Motor Vehicles Act before the concerned Motor Accident Claims Tribunal has the learned Commissioner erred in entertaining the present petition under the provisions of the Workmens' Compensation Act merely because the deceased was allegedly employed as a cleaner on the insured truck at the relevant time ?

(ii) Whether in view of the admitted fact that neither the insured truck No. UP-70 D-9927 was involved in the accident nor the accident had occurred due to the use of the insured truck, has the learned Commissioner erred in fastening the liability to pay the assessed compensation on the appellant insurance company, merely because the deceased was allegedly employed on the insured truck at the relevant time ?

(iii) Whether in view of the fact that the opposite party/respondent No. 2 i.e. the alleged employer had not appeared on the witness stand before the learned Commissioner nor the claimant/respondent No. 1 could lead any documentary evidence in support of her contentions regarding the employment and income of the deceased, has the learned Commissioner erred in ignoring the evidence of the appellant insurance company that the deceased was not an employee of the aforesaid opposite party/respondent No. 2 ?

6. The facts narrated above in nutshell will have to evaluated in view of the judgments of the Apex Court in C. Manjammu v. Divisional Manager, New India Assurance Company Limited, 2022 ACJ 2661.The finding of facts are said to be perverse where no evidence is adduced by the party in whose favour decision is penned. The commissioner has considered evidence led by the claimants as well as the evidence led by the insurance company. The findings are not such which can be said to be perverse. Just because another vehicle is involved in the accident will the claim petition before Workman Compensation Commissioner be not maintainable. The said question raised by the insurance is answered by the legislation itself and Section 167 of the Motor Vehicle Act, 1988 gives the option to the claimants to claim compensation under either of the Acts. In our case the Commissioner cannot be said to have gone beyond his jurisdiction. The ques