JUDGMENT : Vaidya, J. 1. The above First Appeal was filed by the workman's father Bhumanna Poshanna, whose son Baburao Bhumanna, died on February 27, 1970 as a result of injuries sustained by him on February 14, 1970, challenging the judgment and order and passed by the Commissioner for Workmen's Compensation, Bombay dated November 30, 1971, dismissing Bhumanna's application for compensation of Rs. 6,000/-with interest and costs. 2. The relevant facts relied on by the Appellant may be briefly stated as under: The deceased Baburao was an employee of the Respondent, Engineers and Contractors, as a Mazdoor on the pipeline work at Bandra Western Express Highway. On February 14, 1970, while carrying materials across the road, in the course of this work, a motor vehicle collided against him. He was removed to the Nanavati Hospital where he succumbed to his multiple injuries on February 27, 1970. Bhumanna, his father and the dependent is entitled to receive the statutory compensation under the Workmen's Compensation Act, 1923 at Rs. 6,000/- as the monthly wages of the deceased was between Rs. 80/- to Rs. 100/-. 3. The Respondents denied that the deceased was in their employment and contended that the accident was not out of and in the course of the employment. They contended that the deceased had come to see his relation or a friend, who was working with the Respondents' subcontractor Linganna and he was in no way concerned with the work entrusted to the said Linganna by the Respondents ; and even if the deceased was concerned with the work, there was no need to cross the road and no material in respect of the said work was at all required to be taken from across the road. In the circumstances, it was submitted that the Respondents were not liable to pay the compensation as claimed by the father of the deceased. 4. In support of the claim one Laxman R. Patil, the Sub-Inspector of Police attached to Kherwadi Police Station, one Ramkrishna D. Kavalkar, a neighbour of the deceased Baburao, Gangaram Ashanna, Brother-in-law of the deceased were examined besides Bhumanna, who was at the relevant time at Palam District Nizamabad. 4. In support of the claim one Laxman R. Patil, the Sub-Inspector of Police attached to Kherwadi Police Station, one Ramkrishna D. Kavalkar, a neighbour of the deceased Baburao, Gangaram Ashanna, Brother-in-law of the deceased were examined besides Bhumanna, who was at the relevant time at Palam District Nizamabad. On behalf of the Respondents Dattatraya K. Gore, Engineer Contractor was examined, who produced the muster for the month of February, 1970 and said that the name of the deceased Baburao was not in the muster ; but he admitted in cross-examination that Hari Ramchandra Ambavdekar was employed by their company as Site Engineer and he was supposed to be on the site looking after the work. 5. He also had to admit that there were 400 labourers working on the site, although the muster showed only 27 regular employees because the names of the labourers employed by sub-contractors were not entered in the muster. He pretended ignorance of the fact whether the deceased workman was got admitted to the Nanavati Hospital by their Site Engineer, Ambavdekar ; and said that the said Ambavdekar was no longer in their employment though Dr. Kavalkar said from the case paper of the hospital that it was Ambavdekar who had got the deceased admitted in the hospital. 6. The learned Commissioner held that the Applicant had tried to suppress the material facts that the deceased was employed by the sub-contractor Linganna ; and the Applicant suppressed the evidence by not calling Linganna or by calling a co-worker of the deceased ; and hence an adverse inference could be drawn against the Applicant and the Applicant had failed to establish that the deceased had gone to other side of the highway for performance of his duties. 7. The learned Commissioner further held that the deceased was not required to cross the high way or to be on the highway by conditions of his employment and he brought on himself the accident; and thus came to the conclusion that the accident did not arise out of and in the course of his employment. The decision is challenged in the above First Appeal by Bhumanna. The Respondents have not cared to be represented by a lawyer nor are they present here before me. 8. The decision is challenged in the above First Appeal by Bhumanna. The Respondents have not cared to be represented by a lawyer nor are they present here before me. 8. Normally, the question as to whether the injury was caused by an accident arising out of and in the course of his employment would be a question of fact and this Court would not interfere with the appreciation of evidence done by the Commissioner in view of the limitation of the powers of this Court under the provisions of Section 30 of the Workmen's Compensation Act, 1923. In the present case, the learned Judge wrongly held that the Applicant did not prove that the deceased was in the employment of the Respondent. On the basis of an adverse inference drawn against Bhumanna because he did not examine a co-worker or Linganna, who was the sub-contractor; but the learned Commissioner ignored that the Site Engineer, Ambavdekar had taken the deceased to the Hospital and got him admitted and had given the address of the deceased as care of the Respondents. 9. It was for the Respondents, in the circumstances, to examine Linganna and Ambavdekar. Bhumanna was in the village when the accident took place and he could not be expected to have any personal knowledge of the event that happened ; and it was for the Respondents whose address was given when admitting the deceased in the Hospital to explain how that address was given by their employee, Ambavdekar. 10. The Respondents merely examined Gore, who had no personal knowledge about the accident and who produced the muster roll of only 27 workers on the site. In these circumstances the finding arrived by the learned Commissioner on the basis of an adverse inference drawn against Bhumanna must be held to be contrary to the evidence on record and unjustified in law. 11. The burden lay on the Respondents to prove by examining Linganna and Ambavdekar that the deceased was not working with them ; and an adverse inference ought to have been drawn against them particularly when they pretended to show that he was not in their employment merely because their muster roll did not mention the name of the deceased. 12. The burden lay on the Respondents to prove by examining Linganna and Ambavdekar that the deceased was not working with them ; and an adverse inference ought to have been drawn against them particularly when they pretended to show that he was not in their employment merely because their muster roll did not mention the name of the deceased. 12. The leaned Commissioner also ignored the definition of the word 'employer' contained in Section 2(1)(n) which includes any body of persons whether incorporated or not and any managing agent of an employer and the: legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him. 13. Even if Linganna was, their subcontractor for the purpose of the Workmen's Compensation Act, 1923, the Respondents would be the deceased workman's employers and Baburao would be their workman as defined u/s 2(1)(n) as he was an employee for doing the work of the Respondents. 14. The decision of the learned Judges liable to be set aside because he ignored 'the definition of the words, 'employer' and 'workman' contained in Section 2 of the Workmen's Compensation Act, 1923 while dealing with the evidence on record and wrongly threw the burden of proof on Bhumanna who was not at all in Bombay when the accident took place. 15. In the result, the judgment and order passed by the Commissioner for Workmen's Compensation, Bombay on November 30, 1971 are set aside. The application made by Bhumanna is allowed and the Respondents are ordered to pay Rs. 6,000/- with interest at the rate of 6% on the amount from the date of the application that is July 13, 1970 till the deposit of the amount with the Commissioner and the Commissioner shall further consider whether there penalty should be imposed on the Respondents u/s 4A of the Workmen's Compensation Act 1923. The application is restored to the file of the Commissioner for Workmen's Compensation, Bombay for the purpose of carrying out of the aforesaid order. 16. Appeal allowed with costs throughout.