JUDGMENT : SARAL SRIVASTAVA, J. 1. Heard Sri Nagendra Kumar Srivastava, learned counsel for the appellant and Sri Nigamendra Shukla, learned counsel for the respondent. 2. The present appeal is directed against the judgment and award dated 03.11.2008 passed by Workmen Compensation Commissioner and Assistant Labour Commissioner, Jaunpur, whereby the Commissioner has awarded Rs.4,32,100/- to the claimant-respondent. 3. The brief facts of the case are that it is alleged that respondent no. 1 Shri Jai Prakash Giri was employed as Khalasi/Cleaner of truck no. U.P. 62D-0679 owned by his father-respondent no. 2 Raj Narayan Giri. It is further alleged that on the instructions of the owner of the truck he was travelling as Khalasi/Cleaner on 1.8.2003 to deliver goods at Kanpur. When the truck reached near Kamta Bazar Police Station Dehat district Sultanpur at about 10:30 P.M., the brake of the truck failed due to which the driver lost control over the truck and the truck met with an accident. In the said accident the respondent no.1 suffered injuries in his spinal cord and his left leg was amputated. On account of said injuries, he has suffered 75% disability. It is further pleaded that respondent no. 1 was paid salary Rs.2,500/-per month and Rs.50/-towards special diet by the owner of the truck. In the aforesaid backdrop, he instituted a claim petition praying for compensation of Rs.8,00,000/-along-with 10% interest. The owner of the truck who was the father of the respondent no. 1 did not appear before the Commissioner despite the service of notice and, therefore, the Commissioner proceeded ex-parte against respondent no. 2. 4. The insurance company contested the claim petition by filing written statement specifically stating that the respondent no. 1 was not paid salary as cleaner of truck and in fact he is the son of the owner of the truck and there was no relationship of employee and employer between the respondent no. 1 and the owner of the truck. Thus, the claim petition is not maintainable and the appellant is not liable to pay any compensation. 5. 1 was not paid salary as cleaner of truck and in fact he is the son of the owner of the truck and there was no relationship of employee and employer between the respondent no. 1 and the owner of the truck. Thus, the claim petition is not maintainable and the appellant is not liable to pay any compensation. 5. Para 12 of the written statement of the insurance company is extracted herein below: **dFku 12 %& ;g fd oknhx.k }kjk ?kVuk ds lEcU/k esa ge foi{kh chek dEiuh dks fu/kkZfjr le; ds Hkhrj u rks dksbZ rFkkdfFkr ?kVuk ds lEcU/k esa lwpuk fn;k vkSj izFke lwpuk fjiksVZ Hkh foyEo ls ntZ djk;kA bl izdkj ge foi{kh chek dEiuh dks rFkkdfFkr ?kVuk dh lwpuk feyus ij fu;ekuqlkj losZ;j }kjk rFkkdfFkr ?kVuk vkSj ?kVuk esa iz;qDr Vªd okgu la[;k& ;w0ih0 62 Mh&679 ds {kfrxzLr gksus lEcU/k esa losZ ,oa tkap fu;ekuqlkj vius Lrj ls djk;k ,oa tkap ,oa losZ fjiksVZ ds vk/kkj ij mDr rFkkdfFkr ?kVuk,a o ?kVuk esa iz;qDr Vªd dk pkyd fu;ekuqlkj okgu Lokeh dk osru Hkksxh MªkbZoj ugha Fkk vkSj u gh oknh t; izdk'k fxfj Hkh okgu Lokeh dk osruHkksxh [kyklh Fkk vkSj u vkil esa ekfyd o ukSdj dk laca/k gh Fkk bl vk/kkj ij ge foi{kh chek dEiuh dk {kfriwfrZ ds izfr dksbZ mRrjnkf;Ro ugha gSA** 6. On the basis of pleadings between the parties, the Tribunal framed as many as 5 issues. 7. On the issue of employee and employer relationship, the Tribunal has held that from the material on record it is evident that the respondent no. 1 was employed as Khalasi on the truck and suffered injuries during the course of employment. 8. Learned counsel for the appellant has assailed the finding only on issue no. 1 and therefore, the finding on the other issues by the Commissioner are not referred in the judgment. 9. Challenging the aforesaid finding, learned counsel for the appellant has contended that the finding recorded by the Commissioner in respect of issue no. 1 regarding relationship of employee and employer between the respondent no. 1 and owner of the truck is not supported by any evidence and no reason has been assigned by the Commissioner to record a finding as to how the relationship of employee and employer is proved between the respondent no. 1 and the owner of the truck. 1 regarding relationship of employee and employer between the respondent no. 1 and owner of the truck is not supported by any evidence and no reason has been assigned by the Commissioner to record a finding as to how the relationship of employee and employer is proved between the respondent no. 1 and the owner of the truck. He further contends that the residential address of father of respondent no. 1, i.e., owner of the truck and address of the respondent no. 1 in the claim petition is same and, therefore, in the facts of the present case, it is very strange that the father of the respondent no. 1 being owner has not appeared before the Commissioner, despite service of notice, to prove the employment of the respondent as driver on the truck, inasmuch as, the father could be the best evidence to establish the employment of respondent no. 1. 10. He submits that claim petition is nothing but abuse of the process of the Court as the same has been filed by the son of the owner in collusion with the owner and there is no documentary evidence on record to establish relationship of employer and employee to indicate except the testimony of PW-1 Sri Jai Prakash Giri and PW-2 Sri Chandrabhan Giri driver of the truck. 11. He submits that respondent no. 1 could prove the employee and employer relationship by producing his father who was living with the respondent no. 1. The counsel for appellant has relied upon the judgment of the Apex Court in the case of Gottumukkala Appala Narasimha Raju and others Vs. National Insurance Company Limited and other (2007) 13 SCC 446 . 12. Per contra, learned counsel for the respondent contends that the finding of the Commissioner in respect of employment is based upon the proper appreciation of evidence on record. 13. He contends that besides the respondent no.1, the driver of truck was also produced as PW-2 Sri Chandrabhan Giri, who has clearly stated that the respondent no. 1 was employed as Khalasi on the truck. 14. He further contends that the F.I.R. in respect of the alleged accident was also lodged and thus, it is established on record that the respondent no. 1 was employed as Cleaner on the truck. 1 was employed as Khalasi on the truck. 14. He further contends that the F.I.R. in respect of the alleged accident was also lodged and thus, it is established on record that the respondent no. 1 was employed as Cleaner on the truck. He has placed reliance upon the judgment of the Apex Court in the case of T.S. Shylaja v. Oriental Insurance Co., (2014) 2 SCC 587 and the judgment of Punjab and Haryana, High Court in the case of United India Insurance Company Limited Vs. Vinay Kumar LAWS (P&H)-2011-9-12 in respect of the aforesaid contention. 15. I have considered the submissions of the parties and perused the record. 16. It is not disputed on record that the address of the respondent no. 1 and the owner of the truck who is father of the respondent no. 1 is same. 17. It is further relevant to point out that respondent no. 2 being owner has been impleaded as a party in the claim petition and despite the service of the notice, he did not turn up to contest the claim petition. Thus, the conduct of the respondent no. 2 itself indicates that there is apparent collusion between respondent no. 1 and respondent no. 2 and the claim petition has been instituted only with an intention to fetch the compensation. The finding of the Commissioner also does not reveal as to how and on what basis he has returned a finding that the relationship of employee and employer is proved. 18. At this juncture, it is useful to have a glance of the finding of the Commissioner on issue no. The finding of the Commissioner also does not reveal as to how and on what basis he has returned a finding that the relationship of employee and employer is proved. 18. At this juncture, it is useful to have a glance of the finding of the Commissioner on issue no. 2 which is extracted herein below: **Okkn fcUnq la[;k&01 rF;ksa ds voyksdu ls ;g Li"V gksrk gS fd oknh t; izdk'k fxfj dh foi{kh okgu Lokeh ds okgu la[;k ;w0ih0 62&Mh 0679 ij fu;kstu ds nkSjku [kyklh ds in ij dk;Z djrs gq, fnukad 1-8-2003 dks jkr 10-30 cts dkerk cktkj esa isM+ ls Vdjk tkus ds dkj.k mldk cka;k iSj {kfrxzLr gks x;k vkSj bykt ds nkSjku fpfdRlkdks }kjk ?kqVus ds ikl rd dkV fn;k x;k bldh iqf"V oknh }kjk nkf[ky ,Q-vkb-vkj- ls gksrh gSA fpfdRlk dh iqf"V oknh }kjk nkf[ky fpfdRlk lEcU/kh vfHkys[kksa ls gksrh gSA pwWfd ?kVuk lqYrkuiqj ftys esa ?kfVr gqbZ gSA vr% {ks=kf/kdkj lEcU/kh dksbZ fookn mRiUu u gks bl gsrq ?kVuk ls lEcfU/kr lwpuk QkeZ&, ij vk;qDr deZdkj izfrdj vk;qDr ,oa lgk;d Je vk;qDr] lqYrkuiqj dks jftLVMZ i= la[;k 1441@l0J0@¼tks½ MCYkw0 lh0 fnukad& 15-10-2004 ds }kjk Hkst fn;k x;kA vr% bl okn foUnq dk fuLrkj.k oknh ds i{k esa fd;k tkrk gSA** 19. The respondent no. 1 himself has appeared and proved the employment and further has produced the driver of the truck to prove the employment. It is true that the insurance company has not led any evidence to rebut the testimony of PW-1 Sri Jai Prakash Giri and PW-2 Sri Chandrabhan Giri, but in the facts of the present case, where the owner who is the father of the respondent no. 1, is not coming forward to prove the employment of respondent no. 1, this conduct of father of respondent no. 1 indicates that he in collusion with the claimant-respondent and the claim petition is nothing but abuse of the process of the Court. In the case of Gottumukkala Appala Narasimha Raju (supra), the Apex Court has set-aside the order of the Commissioner and High Court granting compensation, where the claim has been made by the wife being the owner of truck for the death of her husband on the ground that it is not worth believing that a wife would employ her husband as driver. In the facts of the present case, the finding of the Commissioner is not supported by any evidence and thus, the same is perverse, and is not sustainable. 20. So far as the judgment of the Apex Court in the case T.S. Shylaja (supra) relied upon by the learned counsel for the respondent is concerned, the Apex Court has rendered the said judgment in a facts situation where the father of the claimant who was the owner of the vehicle appeared before the Commissioner and proved the employment. Thus, in the facts of that case, the Apex Court held that the finding in respect of employment of claimant as driver on the offending vehicle was a finding of fact. 21. The judgment of the Punjab Haryana High Court in the case of Vinay Kumar (supra) relied upon by the respondent is also of no help to him for the reason that the Punjab and Haryana High Court rendered the said judgment in a facts situation where the brother who was said to be employed by his brother was living separately and in these facts, and the Punjab and Haryana High Court has held that the relationship with the owner of truck will not be material. The judgment of the Punjab and Haryana High Court is clearly distinguishable from the facts of the present case for the reasons given above. 22. Thus, this Court finds that the claimant-respondent no. 1 has failed to prove the relationship of employee and employer and further the finding of the Commissioner on the issue of employment is not supported by any evidence, hence being perverse is liable to be set-aside. 23. The appeal is allowed. The order of the Commissioner is set-aside. There shall be no order as to costs.