JUDGMENT : Heard Sri. A.N. Krishna Swamy, learned counsel for the appellant and Sri. B.M. Siddappa and Sri. Harish N.R. learned counsel for the respondents-claimants. 2. These are the insurers’ appeals challenging liability to indemnify the insured in respect of the compensation awarded by the Labour Officer and Commissioner for Workmen’s Compensation, Davanagere (for short ‘the Commissioner’) on the claim petitions filed by the claimants before the Commissioner in the proceeding under Section 22 of the Workmen’s’ Compensation Act. The cases are admitted to adjudicate the following common substantial question of law : “Whether the Commissioner was justified in allowing the respondent No.1 to commit fraud and misrepresentation in wangling an award by creating documents and making allegation that he suffered injuries in a road traffic accident involving lorry bearing No.KA-14-A-3615? 3. Sri. A.N. Krishna Swamy, learned counsel for the appellant insurer submits that as per the case of the claimants, the accident occurred on 10.02.2006 and they took treatment at Primary Health Centre Sriramapura, Primary Health Centre Mallappanahalli and thereafter shifted to C.G. Hospital, Davanagere. But the complaint was lodged to the jurisdictional police after a lapse of 49 days. The reasons assigned by the complainant in his complaint was that all the injured were under treatment in the hospital. Interestingly none of the hospital had treated their cases as ‘medico legal case’ and did not send Hospital Memo to the jurisdictional police. It was categorically mentioned in the complaint that the lorry was driven by the owner cum driver of the vehicle namely Rudra Naik. Subsequently on noticing that said Rudra Naik did not possess the driving licence to drive the vehicle, the story was twisted, so as to implicate one Shahid Pasha who had a driving licence to drive the category of vehicle. It was the complaint averment that since the owner had assured them to take care of their medical expenses and requested them to not to lodge the complaint, they were waiting for the compliance of assurance. It is a clear case of fraud and misrepresentation by the claimants to make illegal gain. The Doctor has not assessed the functional disability of the injured, still the Commissioner assessed the functional disability on his own. 4. Learned counsel would further submit that the employer since responsible for the accident, insurer is not liable to indemnify him. 5. In reply, Sri. The Doctor has not assessed the functional disability of the injured, still the Commissioner assessed the functional disability on his own. 4. Learned counsel would further submit that the employer since responsible for the accident, insurer is not liable to indemnify him. 5. In reply, Sri. B.M. Siddappa, learned counsel the respondents-claimants would submit that initially complaint was lodged against one Rudra Naik who was in the cabin along with the driver and the complainant was under the presumption that the said Rudra Naik was driving the vehicle. However, subsequently, he came to know that it was Shahid Pasha who was driving the vehicle and his further statement is recorded by the Investigating Officer and said Shahid Pasha was charge sheeted for the offences punishable under Sections 279 and 337 of the IPC. It is also to be noted that the allegations with regard to the identity of the driver is taken for the first time before this Court by the appellant-insurer. Either in the original objection statement or in the additional statement such plea was not taken and there was no specific denial of the facts pleaded by the workman. Thus, under Section 58 of the Evidence Act, there is deemed admission of the facts pleaded by the claimants. Even the witnesses examined on behalf of the insurer did not allege so in her affidavit evidence. She had only stated ‘whether the said Rudra Naik had a valid driving licence to drive the vehicle or not was not at all within the knowledge of the claimants. The Commissioner has gone in detail into the evidence and has found that there is merit in the case of the claimants. Thus, allowed their claims against the insurer. 6. With the above rival submissions and on perusal of the impugned judgment and award along with the evidence placed before the Commissioner, it percolates to the point that complaint was lodged by one Ranganath to the jurisdictional police alleging that while traveling in the lorry bearing registration No.KA-14-A-3615 as its cleaner, on the return journey along with the loaders (the remaining claimants); the owner of the lorry was driving the vehicle; due to rash and negligent driving, the vehicle capsized. Resultantly, all the inmates suffered injuries and they were shifted to the hospital by their employer/owner of the lorry etc., Subsequently, a further statement of the said complainant was recorded to the effect that while he was sleeping, Shahid Pasha who was the previous driver of the lorry boarded the vehicle and the owner slept thereafter; this fact came to his knowledge subsequently on his enquiry. Thus, the Investigating Officer filed the charge sheet against Shahid Pasha. 7. It is observed from the lower court records that the employer/owner of the vehicle remained ex-parte and the case was contested by the insurer. In its objection statement, the insurer among other things took up the defence that the driver of the vehicle did not possess valid driving licence to drive the vehicle. In the additional objection statement, it was the further defence that the first respondent the owner has not paid separate premium for covering the risk of the employees and the 1st respondent violated Rule 100 of the Karnataka Motor Vehicles Rules, 1989, since it was an interstate road, carrying loaders from one city to another city is not permissible. 8. It is noteworthy that in their claim petitions, none of the claimants had specified as to who was on the wheels at the time of the accident. The claimants produced the records of the criminal courts, manifestly there is discrepancy between their oral evidence and the documentary proof with regard to the driver of the vehicle. During the examination of the claimants, no effort was made to explain the said discrepancy. The claimants were treated in various Government Hospitals. That being so, it is not explained as to how the hospital authorities failed to send the ‘Hospital Memo’ about the medico legal case to the jurisdictional police. 9. Interestingly, during the cross examination of the claimants, no suggestion was made by the defence to the effect that the employer himself was driving the vehicle at the relevant point of time. For this, Sri. A.N. Krishna Swamy would hasten to submit that in the absence of averment in the examination-in-chief evidence specifying about the identity of the driver of the vehicle, defence was not obliged to make such suggestion and the Officer examined on behalf of the insurer has corroborated the objection statement averments. For this, Sri. A.N. Krishna Swamy would hasten to submit that in the absence of averment in the examination-in-chief evidence specifying about the identity of the driver of the vehicle, defence was not obliged to make such suggestion and the Officer examined on behalf of the insurer has corroborated the objection statement averments. What matters in these claims is that that the person who lodged the complaint to the jurisdictional police was not a stranger who would have wrongly described the offender/driver of the vehicle at the time of the accident. His further statement absolving the owner of the vehicle and substituting Shahid Pasha at his place is not brought on record by him in his oral evidence during the enquiry before the Commissioner. The very fact that the employer remains ex-parte by itself speaks out that he is in hands in glove with the claimants. The Commissioner while returning his findings, did not address the discrepancy with regard to the identity of the driver of the vehicle. 10. Thus, his findings holding the insurer responsible to pay compensation to the claimants in accordance with their contract with the owner/employer of the vehicle suffers from perversity. Hence, the awards are liable to be modified by absolving the insurer from its liability under the award impugned. 11. The appeals are allowed. The impugned award is modified to the extent that the appellant-insurer is absolved of its liability to deposit the compensation amount as directed by the Commissioner without prejudice to the right of the claimants to recover the compensation from the owner of the vehicle/1st respondent. No order as to costs. Ordered accordingly. Registry is directed to return the amount deposited by the appellant-insurance company.