Judgment :- Though matter is listed for Admission, by consent of learned Advocates, appeal is taken up for final disposal, since it is of the year 2003 and records having been secured. 2. The insurer is in appeal questioning the correctness and legality of the order and award passed by the Commissioner for Workmen’s Compensation. Shimoga in WCA 8/2000 dated 8.9.2003 where under claim petition came to be allowed in part and a compensation of Rs.74,792/- with interest 12% P.A. has been awarded is in question. 3. Facts leading to filing of this appeal are as under. The parties are referred to as per their ranks before the Commissioner for Workmen’s Compensation. 3.1 A claim petition was filed by the claimant seeking compensation for permanent disability suffered on account of the accident that occurred on 16.5.1997 while claimant was employed as a cleaner cum conductor in a heavy goods vehicle. The 1st respondent – employer appeared before the Commissioner and filed statement of objections denying the averments made in the claim petition. The relationship of employer and employee also came to be denied. The second respondent – insurer filed its statement of objections and denied the averments made in claim petition. 3.2 On the basis of the pleadings, the parties went for trial and on conclusion of trial, the Commissioner heard the arguments and on appreciation of pleadings and evidence on record allowed the claim petition in part and awarded a total compensation of Rs.74,792/- with interest at 12% P.A. It is this Order and award which is assailed in the present appeal. 4. I have heard the learned advocates appearing for the parties. 5. Sri Rajagopal, leaned counsel appearing for the appellant would contend that claim petition was barred by limitation under Section 10 of the Limitation Act, and there was not even an application for condonation of delay and hence, the claim petition was liable to be dismissed as barred by limitation. He would also submit that Commissioner failed to notice that there was no relationship of “employer” and “employee” between claimant and 1st respondent and there was no material to establish wages/salary was paid to the claimant by his employer. He would also submit that 1st respondent employer himself had specifically denied about relationship and claimant had failed to establish the relationship. He would also submit that 1st respondent employer himself had specifically denied about relationship and claimant had failed to establish the relationship. Hence, he would contend that conclusion arrived at by Commissioner is erroneous and liable to be set aside. He would also submit that claimant had not even completed 18 years as on date of accident and as such he could not have been employed as a cleaner-cum-conductor and such practice is not prevalent anywhere and hence employment itself was clearly doubtful. He would also submit that in the wound certificate, it is stated that injuries suffered by the petitioner is 48 hours old and doctor who treated claimant was not examined and therefore, by inference it has to be held that accident could not have happened on 16.5.1997 and this aspect has been overlooked by the Commissioner. He would also elaborate his submission by contending that there was no material to show that petitioner has lost his vision in the right eye and merely on the basis of a wound certificate, Commissioner could not have held that claimant had lost vision in the right eye in the absence of any medical evidence. He would also contend that claimant admitted that he was aged only 15 years and thus age assessed by the Commissioner at 18 years based on the wound certificate without there being any other evidence available on record is also liable to be set aside. He would also contend that claimant had contended that he was hospitalised for about 9 days and in the absence of many medical records to establish same Commissioner erred in coming to a conclusion that claimant had lost vision in the right eye and it was contended that claimant cannot be said to be covered under the policy as he is stated to be a Conductor. Sri Rajagopal in support of his submission has relied upon the following judgments: 1) 2006 ACJ 528 National Insurance Co. Ltd. Vs. Mastan and another 2) 2003 ACJ 875 United India Insurance Co. Ltd. Vs. Sridhargadde Basappa and another 3) 2003 ACJ 698 T.S. Prabhu and Others Vs. Bhavani Poojary and Others 4) 2009 ACJ 721 Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. and another 6. Ltd. Vs. Mastan and another 2) 2003 ACJ 875 United India Insurance Co. Ltd. Vs. Sridhargadde Basappa and another 3) 2003 ACJ 698 T.S. Prabhu and Others Vs. Bhavani Poojary and Others 4) 2009 ACJ 721 Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. and another 6. Pre contra, Sri Rudragowda, learned counsel appearing for the first respondent would contend that judgment and award passed by the Commissioner is in consonance with the evidence and there are no materials whatsoever to come to a conclusion that there did not exist any relationship of employer and employee and would submit there is no substantial questions of law involved in this appeal for being adjudicated and the first respondent employer having denied the relationship, burden was cast on the employer to establish by positive evidence by examining the driver of the lorry in which the claimant was working as a conductor-cum-cleaner. He would also submit that appeal in question is not maintainable since the owner has not disputed the liability since it is a joint and several liability and as such, appeal is liable to be dismissed as not maintainable. He would also submit that disability that is caused to the claimant and its extent is a question of fact would not give rise for substantial question of law and as such, the present appeal is liable to be rejected. He would submit that owner of lorry who is the employer ought to have examined driver of the lorry to disprove the fact that there did not exist relationship of employer and employee and in the absence thereof Commissioner was justified holding that such relationship exists. 7. In support of his submissions, he would rely upon the following judgments: 1) AIR 1976 SC 222 Pratap Narain Singh vs. Srinivas and another 2) ILR 2001 KAR 5432 National Insurance Company Limited Vs. J. Krishna Sapalya and Others 3) ILR 1982 KAR 1107 Chinnaswamy S by L.Rs. C. Pushpammal and Others 4) AIR 1959 SC 1331 (V 46 CAL.187) British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and others and Jagjit Singh and others 5) 1992 ACJ 521 New India Assurance Co. Ltd. Vs. Raja Naika and another 8. J. Krishna Sapalya and Others 3) ILR 1982 KAR 1107 Chinnaswamy S by L.Rs. C. Pushpammal and Others 4) AIR 1959 SC 1331 (V 46 CAL.187) British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and others and Jagjit Singh and others 5) 1992 ACJ 521 New India Assurance Co. Ltd. Vs. Raja Naika and another 8. Having heard the learned Advocates appearing for the parties, following substantial questions of law arise for consideration: (i) Whether the claim petition was barred by Limitation under Section 10 of Workmen’s Compensation Act? (ii) Whether the relationship of employer and employee exists between the claimant and 1st respondent? (iii) Whether the disability as assessed by the Commissioner is based on medical evidence and deserves to be accepted? (iv) Whether claimant is entitled for compensation? 9. Before delving upon the substantial questions of law raised hereinabove, it would be necessary to examine the issue regarding maintainability of this appeal on the ground of there being no substantial questions of law as contended by Sri Rudragowda, learned counsel for 2nd respondent. REASONS REGARDING MAINTAINABILITY OF APPEAL 10. An appeal against an order passed by the Commissioner for Workmen’s Compensation is governed Section 30 of Workmen’s Compensation Act, 1923 which reads as under: “30. REASONS REGARDING MAINTAINABILITY OF APPEAL 10. An appeal against an order passed by the Commissioner for Workmen’s Compensation is governed Section 30 of Workmen’s Compensation Act, 1923 which reads as under: “30. Appeals._ (1) An appeal shall lie to the High Court from the orders of a Commissioner, namely:- (a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; [(aa) an order awarding interest or penalty under section 4A;] (b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions; Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees; Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties; [Provided further than no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.] (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of (The Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section.” 11. In support of his submission, Sri Rudragowda, has raised two issues namely: (ii) The employer having not joined in filing the appeal is fatal: (iii) There is no substantial question of law in this appeal. (3) The provisions of section 5 of (The Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section.” 11. In support of his submission, Sri Rudragowda, has raised two issues namely: (ii) The employer having not joined in filing the appeal is fatal: (iii) There is no substantial question of law in this appeal. In support of these two propositions, he has relied upon the judgments referred to above i.e.; (1) ILR 2001 KAR 5432 National Insurance Company Limited Vs. J. Krishna Sapalya and Others “WORKMEN’S COMPENSATION ACT, 1923 [CENTRAL ACT NO.8 OF 1923] _SECTION 30 AND CONSTITUTION OF INDIA_ARTICLES 226 AND 227- Insurance Company challenged the Awards passed by Commissioner by filing Writ Petitions and not by filing Appeals under Section 30. HELD_When Insurer cannot maintain Appeal under Section 30 (1) either on account of there being no substantial question of law involved or Appeal could not be filed on any of the defences available to the insurer under Section 149(2) of the Motor Vehicles Act, it is not appropriate for the High Court to give any RELIEF in Writ Petition.” In this judgment, the Insurance Company had challenged the award by filing a Writ Petition and not by filing an appeal under Section 30 of Workmen’s Compensation Act, 1923 and while examining this issue, this Court has held that if the proceedings arise under the Workmen’s Compensation Act, the Insurance Company has no right to contest the claim on any of the defences other than the defences available to it under Section 149 (2) of Motor Vehicle Act and accordingly held that the Writ Petition was not maintainable. 12. This very issue had come up for consideration by the Hon’ble Supreme Court in 2006 ACJ 528 and it has been held to the following effect. “23. The ‘doctrine of election’ is a branch of ‘rule of estoppel’, in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case. 28. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case. 28. We, therefore, with respect do not subscribe to the views of the Full Bench of Karnataka High Court. “The claimant having resorted to the Workmen’s Compensation Act, is controlled by the provisions of that Act subject only to exception recognised in section 167 of Motor Vehicles Act. 34. On the language of section 167 of the Motor Vehicles Act and going by the principle of election of remedies, a claimant opting to proceed under the Workmen’s Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act, 1988, other than what is specifically saved by section 167 of the Act gives a claimant even under the Workmen’s Compensation Act, 1923 the right to invoke the provisions of Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 deals with what is known as ‘no fault’ liability in case of an accident. Section 140 of Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the vehicle. Sections 141 and 142 deal with particular claims on the basis of no fault liability and section 143 respondentemphasises what is emphasised by section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under the Workmen’s Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act, 1988 overriding effect.” and concluded that claim under the Workmen’s Compensation Act, 1923 vis-a-vis chapter X of Motor Vehicles Act, 1988 stands absolutely on a different footing. Hence, the contention of the learned counsel for the appellant that without the employer joining in filing of the appeal, the present appeal cannot be maintained is not sustainable cannot be accepted and accordingly, it is rejected. 13. Hence, the contention of the learned counsel for the appellant that without the employer joining in filing of the appeal, the present appeal cannot be maintained is not sustainable cannot be accepted and accordingly, it is rejected. 13. In so far as the contention regarding there being no substantial question of law and the finding recorded by the Commissioner is a question of fact also cannot be accepted inasmuch as this Court in 2003 ACJ 875 has held that the finding of the Commissioner regarding employer – employee relationship involves substantial question of law and appeal against the said finding is maintainable by analysing various case laws and also considering the judgments of this Court as well as the Hon’ble Supreme Court. I am not inclined to take a different view from the one taken in the said case and as such, the contention raised by the learned counsel for the first respondent regarding maintainability of appeal cannot be acceded and accordingly, it is rejected. 14. In view of the same, the preliminary objection raised by the learned counsel for 2nd respondent regarding maintainability of the appeal is hereby rejected. 15. Re: Question No.1: The learned Counsel for the appellant has raised a contention that claim petition was not maintainable and since it was filed beyond the period of two years. The accident in question has occurred on 16.5.1997 and claim petition was filed on 14.10.1999 alongwith the claim petition, an application for Condonation of delay has filed under Section of the Limitation Act and the Commissioner has considered this aspect in the order challenged herein and has held that the delay deserves to be condoned. In view of the said factual finding it cannot be held that claim petition was not maintainable. Hence, 1st question of law formulated hereinabove is answered in favour of the respondent and against the appellant. 16. Re: Question No.2: The first respondent employer had filed statement of objections before the Commissioner and it has been specifically denied that claimant was working as a cleaner. The specific contention of the employer reads as under: “Para 2. Hence, 1st question of law formulated hereinabove is answered in favour of the respondent and against the appellant. 16. Re: Question No.2: The first respondent employer had filed statement of objections before the Commissioner and it has been specifically denied that claimant was working as a cleaner. The specific contention of the employer reads as under: “Para 2. It is false to state that the petitioner is work under the first respondent working as a cleaner in a Lorry bearing No.MEC 4904 on 16.5.1997 and the petitioner under the instructions of the 1st respondent went in a Lorry as a cleaner from Bhadravathi to Ammasandra and when the said lorry reached Arasikere, the wheel of the lorry got to be changed and the petitioner collected the stepny from the lorry lever and the petitioner was working with the helf of the lever on a wheel all of a sudden the lever rolled on a wheel all of a sudden the lever rolled fast and hit the right eye and thereby the petitioner loss his right eye and become blind and the petitioner return to Shimoga, and got admitted to Mc Gann Hospital for treatment and he was in-patient from 18.5.1997 to 26.5.1997 are all hereby denied as false and not admitted by this respondent and the petitioner is put to strict proof of the same. Para.4. The averments in paragraph 2 of the petition that the petitioner was working as a cleaner under the 1st respondent and that on 17.5.97, when he was changing the wheel, he was hit by the lever and he lost the right eye and he was admitted to the Ms.Gaan Hospital as inpatient and treated as inpatient etc., are all not admitted. The petitioner is put to strict proof of the same. (Emphasis supplied by me) 17. Section 3 of the Workmen’s Compensation Act, mandates that employer has to pay compensation in case of an injury caused to a workman by accident arising out of and in the course of employment. Thus, an employee has to cross the threshold bar by tendering evidence and establishing the fact that he was employed by his employer in the event of there being a denial by the employer. In the instant case, as noticed hereinabove, there is total denial of the relationship. Thus, an employee has to cross the threshold bar by tendering evidence and establishing the fact that he was employed by his employer in the event of there being a denial by the employer. In the instant case, as noticed hereinabove, there is total denial of the relationship. When such being the case, the contention of Sri Rudragowda, that self serving testimony was sufficient to accept that there exists relationship of employer and employee between the parties and on account of non –examination of the driver of the lorry by the claimant, it has to be inferred that there exists relationship of employer and employee is to be examined with circumspection. As stated hereinabove, initial burden is to be discharged by the employee, by producing prima facie material/evidence to demonstrate that he was working under the 2nd respondent in the lorry involved in question either by examining any other co-employee or any other independent witness. In the instant case there are no material of whatsoever nature produced to hold such relationship exists. Self-serving testimony would not be safe to rely upon particularly in view of employer denying the relationship by not only filing the statement of objections but also when he has entered the witness box and denied such relationship. In the absence of the said material, it cannot be held that there exists any relationship of employer and employee. Except the self serving testimony of the claimant there was no other material produced by the claimant to establish the relationship of employer and employee in the instant case. Hence, the contention of respondent’s counsel that owner of the vehicle namely the employer had to prove that there was no relationship by examining the driver of the vehicle cannot be accepted as it would amount to calling upon a party to tender negative evidence. As such, I am of the considered view that claimant has failed to establish that there exists relationship of employer and employee. Accordingly, Question No.2 answered in favour of the appellant and against respondent No.1. 18. Re: Question Nos.3 & 4. In the instant case Commissioner has proceeded to award a compensation of Rs.74,792/- by holding that there is 40% disability to the claimant. The injury in question is to be classified under Schedule-I part II S1.No.25. Accordingly, Question No.2 answered in favour of the appellant and against respondent No.1. 18. Re: Question Nos.3 & 4. In the instant case Commissioner has proceeded to award a compensation of Rs.74,792/- by holding that there is 40% disability to the claimant. The injury in question is to be classified under Schedule-I part II S1.No.25. To arrive at such conclusion, the Commissioner has relied upon Ex.P-1 which is the wound certificate issued by the Senior Medical Officer, Government District, Mc.Gann Hospital Shimoga, where under the Doctor has opined as follows: “Above injury is grievous in nature. Age of injury is more than 48 hours.” The author of Ex.P-1 was not examined. It has not come in evidence that there is loss of vision to the right eye as contended though any medical evidence. On the other hand, it has also been stated in Ex.P-1 to the following effect: “Right eye – both eye-lids swollen. Black in colour. Congantive and cornea lens dislocated” When the certificate depicts that the injury is more than 48 hours old there is no explanation forthcoming as to whether the claimant obtained any treatment immediately on sustaining the injuries and if so, where, when and treatment. For this delay, there is no explanation forthcoming in the evidence. Claimant has been unable to establish that injury in question has occurred in the course of his employment and arose out of employment. The Hon’ble Supreme Court in 2009 ACJ 721 has held as follows: “9. Under section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.” 19. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.” 19. In view of the same I am of the considered view that claimant has failed to prove that injury sustained by him was arising out of the employment and occurred in the course of employment or the injury sustained has factually resulted in loss of vision. In view of the same question No.3 and 4 formulated above are answered by holding that claimant is not entitled for payment of compensation as he had failed to prove that he had suffered any disability, in favour of the appellant and against the first respondent. 20. In view of the discussions made herein above, following order is passed: ORDER (a) Appeal is allowed by answering substantial questions of law 2 to 4 in favour of appellant and 1st question of law in favour of respondent. (b) Judgment and award passed in WCA-8/2000 dated 8.9.2003 is hereby set aside. (c) Claim petition in WCA-8/2000 is hereby dismissed. (d) In view of claim petition having been dismissed IA I/2008 does not survive for consideration and accordingly same is rejected. The amount in deposit is ordered to be paid to claimant-Insurance Company. (e) No order as to costs.