The central legal point established in the judgment is the importance of conclusively determining the identity of the true employer for the purpose of holding them legally liable for compensation under the Workmen's Compensation Act.

R.K. Verma, J.

1. This order shall also govern the disposal of Misc. Appeal No. 46 of 1988, (Saifudddin v. Kalimuddin).

2. The real controversy involved in this case is one of identifying the true employer vis-a-vis the deceased workman, so as to hold him legally liable for compensation under the Act.

3. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 (herein referred to as 'the Act') filed by the insurance company against the order dated January 18, 1988 passed by the Commissioner, Workmen's Compensation, Ujjain in W.C. Case No. 17 of 1983, whereby the learned Commissioner has awarded Rs. 23,100/- as compensation against all the three respondents who have been held to be jointly and severally liable to pay the same and Rs. 4,000/- as penalty against the respondent No. 4 who alone has been held to be liable to pay the same.

4. A cross-objection has been filed in this appeal by Respondent No. 4, Kesuram. A cross-appeal has, however, been filed by the dependent parents of deceased Haidarali for enhancement of penalty amount, viz., Misc. Appeal No. 46 of 1988, (Saifuddin v. Kalimuddin).

5. The facts giving rise to this appeal, briefly stated, are as follows:

The deceased Haidarali s/o Saifuddin was employed as a cleaner on the truck bearing registration No. MPU 6106, who received persona! injuries resulting in his death due to accident arising out of and in the course of his employment as such cleaner. The accident resulting in the death of the deceased Haidarali, cleaner of the truck MPU 6106, took place on June 8, 1983 when Respondent No. 3 Kalimuddin was registered owner of the truck in question as per the record of the Regional Transport Officer. The truck in question also stood insured with the appellant insurance company in the name of Kalimuddin. The deceased Haidarali was appointed as cleaner on the truck by one Kesuram, Respondent No. 4.

6. The parents of deceased Haidarali, Saifuddin and Sara Bai, Respondent Nos. 1 and 2, filed a claim petition on September 15, 1983 for compensation before the Commissioner, Workmen's Compensation, Ujjain in respect of the death of the deceased Haidarali by accident on June 8, 1983, joined in as non-applicants Kalimuddin, registered owner of the truck in question, Kesuram, the person who is said to have appointed deceased Haidarali as cleaner on the said truck and the appellant National Insurance Co. Ltd., with whom the truck stood insured in the name of owner Kalimuddin on the date of accident.

7. After service of notice of the claim petition non-applicants Kalimuddin and the insurance company resisted the claim and Kesuram was proceeded ex parte. It was only at the stage of evidence after the claimants' witnesses had been examined that Kesuram appeared and filed an application dated May 27, 1985 for setting aside the ex parte order against him. The learned Commissioner fixed the case for evidence on the question of sufficient cause in respect of the said application of Kesuram for setting aside the ex parte order. Kesuram was given two opportunities to adduce evidence, viz., on August 26, 1985 and on October 4, 1985 and when he made a prayer for a further opportunity on November 2, 1985, the learned Commissioner rejected his prayer and dismissed Kesuram's application dated May 27, 1985 for setting aside ex parte order against him.

8. The learned Commissioner, on appreciation of evidence adduced in the case, found that the claimant-Respondent Nos. 1 and 2, parents of the deceased workman, were dependent on the earnings of deceased Haidarali, that the deceased Haidarali, who was appointed as a cleaner on the truck bearing registration No. MPU 6106, was a workman on an average monthly salary of Rs. 650/- and that the deceased Haidarali died in the course of his employment due to personal injuries in the accident arising out of such employment.

9. The learned Commissioner held that the claimants were entitled to receive a sum of Rs. 23,100/- as compensation and Rs.