JUDGMENT : Veerendr Singh Siradhana, J. 1. The instant misc. appeal projects a challenge to the order made by the Commissioner, Workmen Compensation Act, 1923, Jaipur District-I, Jaipur (hereinafter referred to 'Commissioner'), declining the claim petition of the claimant-appellants. 2. Essential skeletal material facts necessary for the appreciation of the controversy are that the claimant/appellant, instituted a claim petition claiming compensation on account of death of his son (Shyoram @ Shivram), who died while in employment of the employer as driver on tractor bearing Registration No. RJ-1R-4341. It is pleaded case of the appellant that Shivram (deceased), was employed as driver on the tractor and he died on 12th August, 2007, at about 7:30 P.M. while he was repairing the tractor, which all of sudden started and the deceased was ran-over. An FIR No. 438/2007, was registered reporting the alleged accident. During the course of investigation, in response to a notice under Section 133 of the Motor Vehicle Act, 1988, the employer informed the Governmental Environment Agency that Chhitarmal was employed as driver on the tractor while deceased Shivram, use to look after the tractor. The employer/non-appellant was proceeded ex-parte for he did not put in appearance despite service of notice. 3. The Commissioner, Employees Compensation Act, 1923 (for short, 'the Act of 1923'), on a consideration of pleadings of the parties, framed five issues. For issue No.1 was decided against the claimant/appellant, therefore, declined the claim petition without further proceedings to decide other issues. 4. Learned counsel for the claimant/appellant, Mr. Kamal Gupta, reiterating the pleaded facts and grounds of the memo of appeal, vehemently argued that the Commissioner ought to have decided all the issues as contemplated under Rule 32 of the Workmen's Compensation Rules, 1924 (for short, the 'Rule of 1924'), which is in-consonance with Order 42, Rule 2 CPC. Hence, the impugned order deserves to be quashed and set aside and the claim petition merits acceptance. 5. Hence, the impugned order deserves to be quashed and set aside and the claim petition merits acceptance. 5. Learned counsel would further submit that no evidence was brought on record to substantiate the fact that Chhitarmal was driver on the tractor but for response filed by the employer, on service of notice under Section 133 of the Motor Vehicle Act, 1988, whereas the eye-witness, who appeared in support of the claim petition, in no uncertain terms deposed that Shivram(deceased), was driver on the tractor and died on the date of incident as the tractor ran-over him while he was carrying out some repair work. The employer/non-appellant, was proceeded ex- parte for he neither appeared before the Commissioner nor did he file reply to the claim petition. Hence, keeping in view the underlying object of the compensation under the Act of 1923, which is a beneficiary legislation; the claim petition ought to have been allowed. 6. Per contra; Mr. Virendra Agarwal, learned counsel appearing for non-appellant-Insurance Company, asserted that there was no evidence brought on record substantiating the factum of deceased being driver on the tractor for no driving licence was produced. It is further urged that burden of proof lies heavily on the claimant to prove the facts pleaded in the claim petition. For there was no evidence produced in support of the fact that Shivram (deceased), was the driver on the tractor and he died in the accident/incident arising out of and in the course of employment; therefore, the Commissioner committed no illegality in declining the claim petition. 7. Moreover, driving license of Chhitarmal was produced and brought on record, which conclusively proved the fact that driver employed on the tractor was Chhitarmal and not Shivram (deceased). 8. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar, as also carefully scanned the impugned order dated 16th February, 2009, declining the claim petition. 9. Indisputably, Shivram (deceased), died in the accident/incident on 12th August, 2007, which involved the tractor with the registration No. RJ-1R-4341. It is also not in dispute that the employer in response to notice under Section 133 of the Motor Vehicle Act, 1988, pleaded that Chhitarmal was employed as driver on the tractor and Shivram (deceased) used to look after the vehicle (tractor). 10. It is also not in dispute that the employer in response to notice under Section 133 of the Motor Vehicle Act, 1988, pleaded that Chhitarmal was employed as driver on the tractor and Shivram (deceased) used to look after the vehicle (tractor). 10. In the backdrop of the pleading of the parties and materials available on record, Commissioner, framed five issues. Issue No.1 was framed specifically to the effect as to whether deceased was employed as driver by the employer non-appellant No.1 and died while in employment as driver on vehicle bearing Registration no. RJ-1R-4341? 11. Issue no. 2 was as to whether deceased died while in employment and working under the instructions and for the benefit of the employer? 12. Issue no.3, as framed was as to what was the effect of the reply of non-claimant/non-appellant, on as to the compensation. 13. Issue no.4, in the backdrop of the pleadings was as to whether the claimants were entitled to any compensation? if yes, to do what extent and in what proportion. Issue No.5- 'Relief'. 14. On a consideration of the pleadings of the parties, evidence adduced and materials available on record as well as upon hearing the learned counsel for the parties, the Commissioner, as to issue no. 1, recorded a finding in negative i.e. against the claimants, and therefore, did not proceed further to adjudicate upon other issues. 15. On a consideration of issue No. 1, in view of the reasons supported by reasonings, it is evident that the deceased was not found to be employed as driver on the vehicle (tractor bearing registration no. RJ-1R-4341), and therefore, question for proceeding further to adjudicate upon other issues, simply did not arise. Further, non-appellant No.2- I.C.I.C.I. Lombard General Insurance Company Limited, in its response to the notice on the claim petition pleaded that Shivram (deceased), was neither in the employment nor he was working under the instructions and for benefit of the employer as driver on the tractor, and therefore, the claim petition could not be sustained. The non-appellant-Insurance Company, further pleaded that the burden of proof, to prove the factum of employment as driver and the accident/incident arising out of and in the course of employment, heavily lay on the claim petitioner, for there was no evidence on record and pleadings to that effect in the claim petition, therefore, the claim petition was not sustainable. 16. The non-appellant-Insurance Company, further pleaded that the burden of proof, to prove the factum of employment as driver and the accident/incident arising out of and in the course of employment, heavily lay on the claim petitioner, for there was no evidence on record and pleadings to that effect in the claim petition, therefore, the claim petition was not sustainable. 16. A glance of Section 3 of the Act of 1923, would reveal that if personal injury is caused to an employee by an incident arising out of accident in the course of his employment, is a condition precedent to saddle the employer with the liability to pay compensation in accordance with the provisions of Chapter-II of the act, 1923. Thus, the employment and personal injury or death, caused to an employee arising out of and in the course of employment, is sine qua non to stake a claim for compensation. 17. From the factual matrix as pleaded by the claimant and the materials available on record, it is evident that the claimant/appellant failed to substantiate the factum of employment of the deceased as driver. For the very employment as driver was not proved, therefore, the Commissioner, committed no illegality in refraining from proceeding to adjudicate upon other issues. 18. Moreover, from the response of the employer it is reflected that Chhitramal was the driver on the tractor and his driving licence was placed on record. 19. For the reasons and discussions aforesaid, this Court finds no illegality or error in the impugned order dated 16th February, 2009. Thus, the misc. appeal is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed. Ordered accordingly. No costs.