RAM MOHAN REDDY, J. ( 1 ) THIS miscellaneous first appeal under section 30 (1) (a) of the Workmen's Compensation Act is filed by the insurer, calling in question the correctness of the judgment and award dated 25. 1. 2002 passed in Case No. CWC: cr: 132 of 2001 by the Labour Officer and workmen's Compensation Commissioner, chitradurga (for short 'the Commissioner' ). ( 2 ) RELEVANT facts necessary for determination of this appeal are: one Nagaraja said to be aged 25 years employed by the respondent No. 4 herein, to work as a cleaner in the motor vehicle being a tipper bearing registration No. KA 16-5209 owned by the respondent No. 4 herein, while in the course of employment, sustained grievous injuries in an accident that occurred on 11. 7. 2001 at about 8. 30 p. m. involving a motor vehicle, while he was crossing the road near a dhaba at maderahalli. The deceased Nagaraja, it is claimed, was mowed down by the lorry bearing the registration No. TN 28-4668, driven at a high speed and in a rash and negligent manner. The legal heirs of the deceased Nagaraja, i. e. , respondent Nos. 1 to 3 being the mother, wife and minor son filed an application under section 22 of the workmen's Compensation Act, 1923 (for short 'the Act') seeking compensation for the death of Nagaraja out of and in the course of employment under respondent no. 4. The said claim petition was numbered as CWC:cr:132 of 2001. ( 3 ) UMA, w/o Girish, the employer of deceased Nagaraja was arraigned as respondent no. 1 while the insurance company as the respondent No. 2, before the commissioner. The respondent No. 1, employer, remained absent despite having acknowledged notice of the proceedings. ( 4 ) THE insurance company had filed its statement of objections and resisted the claim of the legal representatives of the deceased Nagaraja. ( 5 ) THE Commissioner, on the basis of the pleadings of the parties framed the following five issues: " (1) Whether the applicants prove that they are the heirs of the deceased and the deceased was working as a cleaner with respondent No. 1 and died during the course of and out of employment? (2) Whether the applicants prove that the deceased was aged 25 years at the time of his death and that he was getting wages of Rs. (2) Whether the applicants prove that the deceased was aged 25 years at the time of his death and that he was getting wages of Rs. 4,000 and batta of Rs. 75 per day? (3) Whether the applicants are entitled to compensation? If so, how much? (4) Whether the respondents are liable to pay compensation and interest? (5) What order?" the Commissioner recorded depositions of the claimant No. 1 Gujjamma, mother of deceased Nagaraja as AW 1 and marked 10 documents as Exhs. A-1 to A-10. The respondents did not lead any oral evidence but produced the copy of the insurance policy which was marked as Exh. R-1. The commissioner having appreciated the oral and documentary evidence placed before him recorded a finding that the deceased nagaraja was an employee under the respondent no. 4 and that he had died out of and during the course of his employment. The Commissioner also held that claim of monthly wage of Rs. 4,000 and batta of rs. 50 per day was said to be exaggerated and took the wages of the deceased at rs. 2,429 per month which is the minimum wage for cleaners as notified by the State government for transport workers. The commissioner after applying the relevant factor for age 25 calculated the compensation at Rs. 2,66,111 and directed the insurance company to make payment, by the judgment and award dated 25. 1. 2002. The insurer being aggrieved by the said judgment and award has come up in this appeal. ( 6 ) MR. B. C. Seetharama Rao, learned counsel for the appellant would contend that the Commissioner had committed an illegality in not appreciating the evidence in the right perspective inasmuch as there was no evidence worth the while to hold that the deceased was an employee under the insured Uma. He would also contend that the policy of insurance related to one under the Motor Vehicles Act and was with reference to the motor vehicle bearing registration No. KA 16-5209, which in fact did not meet with an accident and, therefore, the Commissioner ought not to have fastened the liability on insurance company to pay the compensation. ( 7 ) ON the other hand, learned counsel for the claimants Mr. ( 7 ) ON the other hand, learned counsel for the claimants Mr. M. R. Patil would support the findings of the Commissioner and contend that the judgment and award is well merited, fully justified on the materials on record and that the appellant has not shown that the impugned judgment and award suffers from any infirmity in law. ( 8 ) HAVING heard the learned counsel for the parties, the substantial question of law that arises in this appeal is, whether the commissioner was justified in holding that the deceased Nagaraja was an employee working as a cleaner under the insured uma w/o Girish, the owner of the lorry bearing registration No. KA 16-5209 in the facts and circumstances of the case and evidence on record. ( 9 ) THE appellant has disputed the fact that the deceased Nagaraja was an employee of the insured Uma. In addition, he has also disputed the accident said to have taken place. In the proceedings before the commissioner, it is noticed, the appellant has secured permission under section 170 of the Motor Vehicles Act, 1988 to raise all such defences as are available to the employer, insured. ( 10 ) SECTION 3 (1) of the Workmen's compensation Act takes into its fold a 'mishap' or untoward event not expected or designed. The death or any injury could be accidental from the point of view of the workman who dies or suffers the injury. If it is unexpected or one without design on his part, although it is brought about by any other cause, the liability to pay compensation under the Act gets foisted on the employer provided it is shown that the workman concerned suffered from personal injury fatal or otherwise by any accident arising out of and in the course of his employment. Such an accident is also covered by the statutory coverage contemplated under section 147 of the Motor Vehicles act, 1988 read with the identical provision under the very contract of insurance reflected by the policy which would make the insurance company liable to cover such claims for compensation for which the statutory liability is imposed on the employer under section 3 read with section 4-A of the Act. ( 11 ) IN view of section 3 (1) of the Act, the claimants in order to succeed in their claim to receive compensation must prove that the deceased was a workman under the employment of the employer and that the accident arose out of and in the course of such employment. These conditions will have to be fulfilled before the legal heirs of the deceased employee claim any benefit under the Act. Primarily, it must be established that the deceased was a workman falling within the definition of the said term under clause (n) of sub-section (1) of section 2 of the Act. The words 'out of indicate that the injury must be caused by an accident which had its origin in the employment. Where there is a dispute with regard to the claim that the deceased was a workman; that question should be decided at the very threshold of the inquiry before taking up for consideration the question of computing the compensation. Although the onus of proving that the deceased was a workman and the death due to the accident arose out of and in the course of employment rests upon the claimants, these essentials may be inferred when the facts proved justify the inference. On the one hand, the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. ( 12 ) IN the facts of the present case, the learned counsel for the appellant points out with reference to original records placed before this court that there is absolutely no evidence worth the while to establish the employer and employee relationship in the first place. The learned counsel took me through the contents of the original documents marked in evidence at Exhs. A-1 to a-10. Except for Exh. A-3 said to be a statement made by the insured Uma w/o girish before the jurisdictional police authorities, there is absolutely no evidence to establish the relationship of employer and employee. This contention of the learned counsel for appellant is not disputed by the counsel appearing for the claimants. The mother of the deceased is examined as AW 1 who has reiterated the statements made in her petition. This contention of the learned counsel for appellant is not disputed by the counsel appearing for the claimants. The mother of the deceased is examined as AW 1 who has reiterated the statements made in her petition. In her cross-examination she has denied the suggestions made by the insurance company with regard to the employment particulars, while it is elicited that no document regarding the relationship of employer and employee and that of wages paid to the deceased Nagaraja are available on the record. No credence can be placed on the self-serving statement of aw 1. Her evidence does not inspire confidence in the mind of the court. The driver of the lorry in which the deceased is said to have worked as a cleaner, is not examined. The claimants have failed to examine any independent witness to prove the factum of employment. The alleged employer, the respondent No. 4 herein has not put in her appearance, nor filed her statement and neither admitted or denied the relationship. ( 13 ) IN the absence of substantial legal evidence, the claimants have not proved that the deceased was a workman. It is possible to accept that the deceased Nagaraja was in the employment of the insured uma. The finding recorded by the Commissioner based on Exh. A-3 could hardly be said to be proof of employment and cannot be justified. The contention of the learned counsel for the appellant that the claimants had not adduced substantial legal evidence to prove the relationship of master and servant between the deceased and uma, deserves acceptance. The finding of the Commissioner is perverse. ( 14 ) HAVING held that the finding of the commissioner is perverse on the question of relationship of the deceased Nagaraja with the alleged employer Uma the insured, the claim of the legal heirs of Nagaraja is not maintainable. ( 15 ) LEARNED counsel for the appellant submits that the jurisdictional police have prosecuted the driver of the lorry bearing registration No. TN 28-4668 for having caused the accident in which Nagaraja is said to have sustained fatal injuries and succumbed to the same. If that is so, the legal heirs of Nagaraja will certainly be entitled to initiate proceedings under the motor Vehicles Act, 1988 to claim compensation, if so advised. ( 16 ) THE appeal is allowed. The impugned judgment and award dated 25. 1. If that is so, the legal heirs of Nagaraja will certainly be entitled to initiate proceedings under the motor Vehicles Act, 1988 to claim compensation, if so advised. ( 16 ) THE appeal is allowed. The impugned judgment and award dated 25. 1. 2002 passed in Case No. CWC:cr:132 of 2001 is set aside and the application for compensation by the legal heirs of deceased nagaraja stands dismissed. ( 17 ) IN the peculiar facts and circumstances of the case, the parties to bear their own costs. ( 18 ) IT is noticed from the order sheet maintained by this court that a sum of rs. 2,66,111 had been deposited by the appellant before this court. By an order dated 9. 4. 2002, the claimants were permitted to withdraw the sum equivalent to 25 per cent of the amount in deposit which the learned counsel for the claimants submits is withdrawn. It is needless to say, the appeal of the insurer being allowed, the appellant is entitled to restitution and the claimants are directed to refund to the appellant the monies withdrawn by them pursuant to the order dated 9. 4. 2002. The registry is directed to refund the balance of amount to the appellant. Appeal allowed. --- *** --- .