JUDGMENT : The appellant/insurance company is before this Court in these two appeals under Section 30(1) of the Employees Compensation Act, 1923 challenging the judgment and award dated 24.01.2011 passed by the Commissioner for Workmen Compensation, Kolar (hereinafter referred to as 'the Commissioner’ for short) in WCA No.56/205 in MFA No.2914/2011 and in WCA No.57/205 in MFA No.2915/2011. 2. The brief facts of the case are that: The claimants in both the claim petitions were before the Commissioner claiming to be coolies engaged by respondent No.2/owner of the lorry bearing registration No.KA07/4453. It is stated that on 07.07.2005 in the midnight at 1.30 a.m., they were traveling in the said lorry along with other three persons from Mulabagal to Bangalore to unload the sand belonging to Sri.Ramappa and Sri.Gopalappa. After unloading the sand, while they were returning from Bangalore to Mulabagal, the accident took place due to the rash and negligent driving of driver of the offending lorry. As a result of which, they suffered injuries. Immediately after the accident, the claimants were shifted to R.L.Jalappa hospital wherein they took treatment as inpatients. It is the case of the claimants that they were earning Rs.4,000/p.m. Since they had suffered injuries during the course and out of employment, they filed claim petitions before the Commissioner. 3. On service of notice, the insurance company/2nd respondent therein appeared before the Commissioner and filed their objections contending that the claimants were not the employees under 2nd respondent/owner of the offending lorry. Hence, the claim petitions are not maintainable. 4. In support of their claim, the claimants got examined themselves as P.W.1 and P.W.2 and got marked the documents as Ex.P1 to Ex.P5 in WC/NFC56/2005 and Ex.P1 and Ex.P2 in WC/NFC57/2005. 5. Based on the pleadings of the parties, the Commissioner for Employees Compensation Act framed as many as six issues which are as follows. XXX XXX The first issue was whether the petitioners/claimants are workmen as defined under the Employees Act? 6. The Commissioner answered all the issues in favour of the claimants and awarded total Compensation of Rs.1,70,389/and Rs.1,35,025/respectively to the claimants and fastened the liability on the second respondent/insurance company. Aggrieved by the said judgment and award, the second respondent/insurer is before this Court in these two appeals. 7. Heard the learned counsel for the appellant/insurance company and respondents/claimants and perused the appeal papers as also the lower court records. 8. Aggrieved by the said judgment and award, the second respondent/insurer is before this Court in these two appeals. 7. Heard the learned counsel for the appellant/insurance company and respondents/claimants and perused the appeal papers as also the lower court records. 8. Learned counsel for the appellant/insurance company has raised only one contention that the claimants have not established that they were engaged by the 2nd respondent/owner of the offending lorry and as the claimants have failed to establish employer and employee relationship, the Commissioner ought to have rejected the claim petitions. He submits that there is no evidence to show that the claimants are employees of the first respondent. In the cross-examination, the claimants have stated that they are not aware of the name of the owner and who has engaged them. In the absence of any evidence, the Commissioner could not have held that the claimants are employees under the second respondent/owner of the lorry and that they have established the relationship of employer and employee. 9. Per contra, learned counsel for the respondents/ claimants would submit that they were employed by the 2nd respondent and they were working as coolies for more than two years in the said lorry. Learned counsel also submits that the FIR would clearly show that they were the employees under the second respondent/owner, which fact has been deposed in the evidence. Further he contends that the appellant/insurance company has not produced any contrary evidence to say that the claimants are not employees of the first respondent. 10. On hearing the learned counsel for the parties and on going through the records, the only question of law which arises for consideration is whether the claimants have established the employer and employee relationship?. The answer to the above said question is in the negative for the following reasons: 11. There is no dispute with regard to the accident which had taken place on 07.07.2005 when the claimants were traveling in the lorry bearing registration No.KA07/4453 and the injuries suffered by them in the said accident. It is stated that the claimants were earning Rs.4,000/p.m. and insurance policy was in currency as on the date of accident. But the claimants have failed to establish the employer and employee relationship between them and the 2nd respondent. It is stated that the claimants were earning Rs.4,000/p.m. and insurance policy was in currency as on the date of accident. But the claimants have failed to establish the employer and employee relationship between them and the 2nd respondent. It is their case that the second respondent/owner of the lorry engaged their services and they were working with her for more than two years. The cross-examination of one of the claimants reads as follows: Xxx xxx 12. The above evidence of the claimant would indicate that he does not know the owner of the lorry nor the driver of the lorry. When he contends that he was working for more than two years, at least he should know the name of the person who pays wages to him and who is the owner of the vehicle. At least, the driver of the lorry could have been examined to say that the claimants were working in his lorry. No such independent evidence is also brought on record. No doubt, a coolie cannot be expected to produce the order of appointment or any document to prove that he is employed under respondent No.2/owner of the offending lorry. But, in the present case, even though the claimants say that they have been working under the 2nd respondent for more than two years, they do not know the name of their employer and who is paying wages to them. 13. Learned counsel for the respondents/claimants relied upon a decision of this Court reported in 2018 ACJ 268 in the case of NEW INDIA ASSURANCE CO. LIMITED v/s MARUTHI AND OTHERS. In the said case, the claim of the workman was not resisted by the owner of the vehicle. Taking the material evidence on record, the Commissioner had come to the conclusion that the claimant is a workman under respondent No.1 therein. But, in the present case, the 2nd respondent/owner had remained exparte and no other independent witness is examined to say that the claimants were working under respondent No.2/owner of the offending lorry. In that circumstances, the decision relied upon by the respondents/claimants do not assist their contention that the FIR would indicate that the claimants were working under respondent No.2. The claimants cannot rely upon FIR to say that they are workmen under Respondent No.2. In that circumstances, the decision relied upon by the respondents/claimants do not assist their contention that the FIR would indicate that the claimants were working under respondent No.2. The claimants cannot rely upon FIR to say that they are workmen under Respondent No.2. No evidence is produced before the Court to come to the conclusion that the claimants are employees of Respondent No.2. On the other hand, in the cross-examination of claimants, it was deposed that they knew one Gopalappa who had hired the lorry for transporting sand from Mulabagalu to Bengaluru. The learned counsel for the respondents/ claimants submits that as the Gopalappa had hired the offending lorry, he would come within the meaning of ‘Employer’ as per Section 2(e) of the Employees Compensation Act and as such, respondent No.2 herein is to be considered as employer of the claimants. Such an argument cannot be accepted and it is not the case of the claimants that they were hired by Gopalappa for loading and unloading of sand in the lorry bearing registration No.KA07/4453 belonging to the second respondent-owner of the offending lorry. 14. For the reasons stated above, the question of law framed above is answered in the negative and the appeals are allowed. The claim petitions filed before the Commissioner for Workmen Compensation are dismissed. 15. The amount in deposit is directed to be refunded to the appellant/insurance company.