JUDGMENT 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. 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. 4,000/- as penalty. 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. 4,000/- as penalty. As regards fixing the liability to pay compensation and penalty, the learned Commissioner has held Kalimuddin, Respondent No. 3, Kesuram, Respondent No. 4 and the appellant insurance company, jointly and severally liable to pay the aforesaid compensation amount but as regards the amount of penalty the Respondent No. 4, Kesuram, alone was held liable to pay the same. Being aggrieved by the impugned order of the Commissioner awarding compensation, the insurance company has filed this appeal. 10. The learned counsel for the claimant Respondent Nos. 1 and 2 has, however, raised a preliminary objection to the maintainability of this appeal under Section 30 of the Act, on the ground that such an appeal cannot lie unless the memorandum of appeal is accompanied by a certificate of the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against and that in the instant case the appellant has not deposited the amount awarded by the impugned order. Learned counsel has cited a few decisions in support of his submission including a single Bench decision of this Court in New India Assurance Co. Ltd. M. Mohinder Singh, 1986 ACJ 1101 (MP). In reply a Division Bench decision of this Court taking a contrary view has also been cited, i.e., Northern India Insurance Co. Ltd. v. Commissioner for Workmen's Compensation, 1973 ACJ 428 (MP), wherein it has been held that in an appeal by the insurance company which is not the employer, the condition as to deposit in an appeal under Section 30 of the Act does not apply. The restriction contained in the proviso to Section 30 of the Act for depositing the amount is expressly limited to an appeal filed by the employer and since the insurance company is not the employer, that restriction is not applicable to the insurance company. 11. In view of the aforesaid Division Bench decision of this Court which does not appear to have been overruled, the preliminary objection of the learned counsel for the claimant-Respondent Nos. 1 and 2 is rejected. 12. 11. In view of the aforesaid Division Bench decision of this Court which does not appear to have been overruled, the preliminary objection of the learned counsel for the claimant-Respondent Nos. 1 and 2 is rejected. 12. Learned counsel appearing for the appellant insurance company has contended that the Respondent No. 3, Kalimuddin, was not the owner of the truck in question on June 8, 1983, the date of the motor accident, since Katimuddin had already sold the said truck to one Rehanabai w/o Tahirali on February 10, 1979 and as such, Kalimuddin was not liable to pay compensation in respect of the death of deceased Haidarali, cleaner of the truck and consequently, the insurance company, which had insured the truck in the name of Kalimuddin and not Rehanabai for the relevant period, i.e., 1983-84, covering the date of the accident, was also not liable to pay the compensation amount. On the question of the alleged transfer of the truck in question, the learned Commissioner has found that the Respondent No. 3, Kalimuddin, had failed to prove that he had received the price for and delivered possession of the truck in question to the alleged transferee Rehanabai and as such, transfer of the truck was not proved. 13. Learned counsel for the appellant has drawn my attention to a document Exh. D-1 which is a carbon copy entitled as 'bikrikhat rashid' at the foot of which the respondent Kalimuddin appears to have put his signature as seller but there is no signature of the alleged purchaser on this document which recites the fact of transfer in favour of Rehanabai. Rehanabai has neither been joined as a party in the case nor has she been examined as a witness in the case. The document Exh. D-1 relating to alleged transfer of the truck is a writing signed by Kalimuddin himself and as such, it cannot suffice for proving the transfer in favour of Rehanabai without examining the latter as a witness, particularly because there is no indication either in the records of the R.T.O. or of the insurance company about the change of the ownership of the truck, which still continues in the name of Kalimuddin as per those records. 14. 14. The learned counsel for the appellant insurance company has next contended that under the Act, it is the employer who is to be held liable for the compensation and that Kalimuddin cannot he held to be the employer of the deceased Haidarali, since it is the case of the claimants themselves that the deceased Haidarali had been appointed by Respondent No. 4, Kesuram. 15. The learned Commissioner, on the basis of the statement of the claimants to the effect that Kesuram had appointed Haidarali and was paying him salary, has held Kesuram also liable jointly and severally along with Kalimuddin and the appellant insurance company and further ordered payment of penalty amount by Kesuram alone. 16. From the findings of the learned Commissioner the peculiar situation that arises is that on the date of the accident Respondent No. 3 Kalimuddin was the owner of the truck on which the deceased workman Haidarali was employed as a cleaner but the deceased Haidarali was appointed and paid his salary by Kesuram, Respondent No. 4. 17. The Act envisages employer's liability for compensation. The learned Commissioner by rejecting the evidence of transfer of the truck by the registered owner Kalimuddin, has apparently treated Kalimuddin as the employer of deceased Haidarali, who was a cleaner on the truck in question. Further the learned Commissioner has, by accepting the evidence that the deceased Haidarali was appointed and paid his salary by Kesuram, Respondent No. 4, seems to hold Kesuram also liable as the employer. But this is an incongruous position in the order of the learned Commissioner that there should be two employers contemporaneously in respect of the deceased workman Haidarali, the cleaner on the truck in question and as such, it cannot be legally sustained. The order of the learned Commissioner is, therefore, liable to be set aside. 18. As has been stated at the outset 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. The order of the learned Commissioner is, therefore, liable to be set aside. 18. As has been stated at the outset 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. The finding of the learned Commissioner that the deceased Haidarali was a workman employed as a cleaner on the truck in question appears to be well-founded, being based on evidence on record, and as such, the just claim for compensation must not be allowed to be frustrated on account of vagueness in finding as to who was the employer of the deceased workman. The fact as to who was the employer, has not been conclusively determined because of the insufficient and laconic evidence available on record. 19. Kesuram, Respondent No. 4, was proceeded ex parte and has not been examined in the case. After being given two opportunities for adducing evidence in support of his application for setting aside ex pane order, the learned Commissioner turned down his prayer for further opportunity to adduce evidence and rejected his application. The result has been that there is no evidence to show the connection and status of Kesuram in relation to the truck on which the deceased workman was employed as a cleaner. It is not known whether Kesuram was the Manager acting on behalf of the owner of the truck, or was a hirer, agent or a transferee owner. There is no allegation either in the pleadings of the parties or in evidence that the truck in question was ultimately transferred to Kesuram. The registered owner of the truck Kalimuddin Respondent No. 3, is alleged to have transferred the truck to one Rehanabai, but Rehanabai has not been joined as a party in the case nor has she been examined as a witness. There is neither any averment nor any evidence to show any connection of Kesuram with the ownership of the truck and it appears necessary that Kesuram's reply and evidence are received in the case to have a clearer picture so as to fairly determine the liability of the parties. 20. There is neither any averment nor any evidence to show any connection of Kesuram with the ownership of the truck and it appears necessary that Kesuram's reply and evidence are received in the case to have a clearer picture so as to fairly determine the liability of the parties. 20. In view of the discussion aforesaid the impugned order which does not clearly determine the identity of the employer or the connection or status of Kesuram in relation to the truck and the deceased, is hereby set aside and the learned Commissioner is directed to join Rehanabai, the alleged transferee of the truck, as a party non-applicant and to proceed with the case in accordance with law. The learned Commissioner is further directed to give opportunity to Kesuram, Respondent No. 4, to participate by filing his written statement and adducing evidence. The evidence already adduced in the case shall, however, form part of the record. The learned Commissioner shall determine the liability or otherwise of the respondents to pay compensation on the basis of totality of the evidence that may come on record. 21. Accordingly, this appeal, the cross objection as well as the cross-appeal in Misc. Appeal No. 46 of 1988, (Saifuddin v. Kalimuddin) stand disposed of. In the circumstances of the case, there shall be no order as to costs.