JUDGMENT: This appeal is directed against the award dated 26th July. 2004 passed by the Presiding Officer-cum-Commissioner, Workmen's Compensation Act, Labour Court, Hazaribagh in W.C. Case No. 1 of 2001 whereby he has awarded a sum of Rs. 1,73,215/- and held that Insurance Company is liable to pay the compensation amount. The claimant, who is the widow of the deceased Santosh Kumar filed a claim case before the Commissioner, Workmen's Compensation for grant of compensation on the ground that the deceased was employee under Baleshwar Yadav, the owner of the truck bearing no. BK-38C-9283 alongwith another driver, Rohan Yadav and Rajendra Yadav, the Khalashi. While they were going in the truck from Koderma to Giridih on the way miscreants looted the truck and committed their murder. According to the claimant respondent, the deceased Santosh Kumar was working as driver of the said truck and was getting Rs. 3.000/- per month. 2. The respondent-owner of the vehicle contested the claim by denying the relationship of employee and employer. The case of the owner was that the deceased Santosh Kumar was not employee under him rather his status was a coolie for loading and unloading the truck on the basis of commission on the date of occurrence. According to the owner, the vehicle was insured with the appellant Insurance Company and even any compensation amount is payable the same shall be paid by the Insurer Company. The appellant-National Insurance Company also contested the claim by filing written statement. The stand of the Insurance Company was that the vehicle was insured covering the risk of two persons i.e. driver and cleaner and the third party. 3. The Presiding Officer discussed the evidence adduced from the side of the claimant to establish the relations of employee and employer. On careful consideration of the evidence, the court held that although the case of the claimant that the deceased Santosh Kumar was second driver of the truck has not been established, but the fact that the deceased was employee under the owner has been established. On this finding, the Court came to the conclusion that relation of employee and employer did exist and the vehicle having been insured, the insurer of the vehicle will be liable to pay the compensation amount. 4. Mr. On this finding, the Court came to the conclusion that relation of employee and employer did exist and the vehicle having been insured, the insurer of the vehicle will be liable to pay the compensation amount. 4. Mr. Alok Lal, learned counsel appearing for the Insurance Company assailed the impugned award as being illegal, contrary to facts and evidence on record and is without jurisdiction. Learned counsel firstly contented that the finding of the court with regard to the relationship of employee and employer between the owner and the deceased Santosh Kumar is perverse in law. Learned counsel further submitted that the court below has committed error on record in so far as it held that there was no pleading of the appellant-Insurance Company to the effect that the vehicle was insured covering the risk of only two persons i.e. driver and the cleaner. 5. Learned counsel submitted that the Insurance Company has already discharged its liability by paying compensation to the driver and the cleaner whose risk were covered under the policy on the basis of award passed in two other cases filed on behalf of the deceased driver an,] the cleaner of the said vehicle. 6. Mr. B.V. Kumar, learned counsel appearing for 'he claimant :m the other hand submitted that the court below has recorded a finding of fact with regard to tile relationship of employee and employer and having regard to the fact that the vehicle was insured, the Insurance Compi1ny has been rightly saddled with the liability of the compensation. 7. As noticed above, it was the specific case of the claimant that the deceased Santosh Kumar was the second driver in the vehicle which tact has been denied by the owner of the vehicle. The court below also recorded a finding that the case of the claimant has not been established also. The witnesses examined on behalf of the owner of the vehicle nave deposed otherwise. O.P. No. 1 Prayag Rajak in his examination in chief stated that Santosh Yadav was a labourer in the truck. He further stated that the deceased Santosh Yadav used to travel In the truck in course of 'learning the truck driving. The deceased was told by the witness that after you get the training to drive the truck you will become a driver. He further stated that the deceased Santosh Yadav used to travel In the truck in course of 'learning the truck driving. The deceased was told by the witness that after you get the training to drive the truck you will become a driver. Another witness O.P. No. 2 Bindeshwari Kumar Rajak deposed that the deceased Santosh Yadav was working as coolie in the said truck. The owner Baleshwar Yadav was examined as O.P. No.3. He admitted that the driver Rohan Yadav, the Khalasi, Raju Yadav and the coolie Santosh Yadav, the deceased were going in the truck and on the way they were murdered. The court below, therefore, rightly recorded a finding that although the case of the claimant was that Santosh Yadav was the second driver has not been established. 8. The next question, therefore, that falls for consideration is whether in the aforesaid premises the Insurance Company will be held liable for payment of compensation. It has come on the record that originally the claimant-respondent has filed a case before the Commissioner, Workmen's Compensation, Hazaribagh, being WC Case No. 10 of 2000 for the same relief: In the said claim case owner appeared and denied the fact that the deceased Santosh Kumar was driver in the said truck. The Insurance Company also appeared and filed a show cause taking the defence that under the policy only two persons, the driver and the Khalashi were covered. The Commissioner after hearing the parties by order dated 30.12.2000 disposed of the said case holding that the owner of the vehicle is liable to pay compensation. However, the aforesaid order was recalled on by order dated 16.5.2001 on the application filed by the owner of the vehicle under Order 9 Rule 13 C.P.C. 9. Prima facie, the Commissioner being Tribunal has no jurisdiction to recall its final order, but we are not entering into this question. It has been specifically pleaded by the Insurance Company that the vehicle was insured covering the risk of two persons that is the driver and the cleaner and third party. This fact has been corroborated by the owner, who was examined as O.P. No.1. In para 9 of his evidence, he has stated that he submitted a proposal of insurance for covering the risk of driver and cleaner. This fact has been corroborated by the owner, who was examined as O.P. No.1. In para 9 of his evidence, he has stated that he submitted a proposal of insurance for covering the risk of driver and cleaner. When such specific defence was taken by the Insurance Company, it was incumbent upon the owner of the vehicle to establish that besides driver and cleaner other persons traveling on the truck were also covered under the policy. No evidence was adduced nor the policy was produced by the owner of the vehicle to discredit and controvert the defence taken by the Insurance Company. In the instance appeal also although lawyers entered appearance on behalf of the respondent-owner of the vehicle, but none appeared to support the case of the respondent-owner of the vehicle. Besides the above from the evidence of the witnesses examined on behalf of the owner of the vehicle, prima facie, it has been established that the deceased was allowed by the owner to travel on the vehicle either to learn the driving of the vehicle or for any purpose. 10. In that view of the matter, we are of the opinion that the owner of the vehicle must be saddled with the liability for payment of compensation for the death of Santosh Yadav @ Santosh Kumar employed as a coolie or was allowed to travel in the vehicle. 11. This appeal is, therefore, allowed and it is held that the truck owner of the vehicle shall make payment of the compensation amount.