JUDGMENT : RAVI V. HOSMANI, J. 1. With consent of counsel for both parties, matter is heard and taken up for final disposal. 2. Challenging judgment and award dated 05.04.2024 and 15.04.2024 respectively passed by IV Addl. Senior Civil Judge and Commissioner for Employee’s Compensation, Kalaburagi (in short ‘Commissioner’) in ECA no.75/2014, this appeal is filed. 3. Sri Sharanabasappa M Patil, counsel submitted, appeal was by insurer challenging finding of Commissioner on relationship between deceased and respondent no.5 as employee and employer and occurrence of accident during course of employment and out of employment. It was submitted, as per claimants, Mohammed Ismail, was employed as labour on monthly salary of Rs.9,000/- by respondent no.5/owner of lorry bearing Reg.no.RJ-19/GB-2504. While on duty on 25.01.2014 at about 9:00 a.m. unloading marble stones in front of house of Dr.Nitin Thakur’s house, Kalaburagi, one of marble stones fell on his chest. Due to same, Mohammed Ismail died on spot. Alleging loss of dependency on account of untimely death, his wife and children filed application under Section 10 of Workmen’s Compensation Act. 4. Despite service of notice, owner/employer did not appear and was placed ex-parte. Only Insurer filed objections, not only denying age, occupation and income of deceased, but also relationship with respondent no.5 as employee and employer and occurrence of incident during course of employment and out of employment. 5. Based on pleadings, tribunal framed issues and recorded findings. Claimant no.1 was examined as PW-1 and got marked Exs.P-1 to 6. Insurer examined its official as RW-1 and got marked insurance policy as Ex.R-1. Without proper appreciation, tribunal held relationship as established and that accident occurred during course of employment and out of employment and assessed compensation of Rs.8,54,280/- and held insurer jointly and severely liable to pay compensation with interest at 12% p.a. Aggrieved, present appeal was filed. 6. It was submitted contents of FIR, compliant and charge sheet marked as Exs.P1 to 3, indicated deceased and Mohammed Gaus, were employed by Dr.Nitin Thakur for unloading marble stones. However, during evidence, claimant sought to improvise by claiming that they were employed by owner of lorry. It was submitted, even Dr.Nitin Thakur was not examined by claimants. 7. In compliant, it was specifically mentioned that on date of accident, deceased was employed by Dr. Nitin Thakur for unloading marble stones for his house. However, during evidence, claimant sought to improvise by claiming that they were employed by owner of lorry. It was submitted, even Dr.Nitin Thakur was not examined by claimants. 7. In compliant, it was specifically mentioned that on date of accident, deceased was employed by Dr. Nitin Thakur for unloading marble stones for his house. It was further submitted that during cross examination, suggestion was made to PW-1 that deceased was not employee of owner of lorry. Without any specific material to indicate that he was employed by owner of lorry, commissioner was not justified in holding that incident had occurred during course of employment and out of employment and holding insurer liable to pay compensation. 8. Sri B Ali Mohammad and Sri Sanjeev Patil, learned counsel for respondent-claimants sought to oppose appeal. It was submitted, tribunal had rightly appreciated material on record and arrived at conclusion on fact about occurrence of death of deceased during course of employment and out of employment. It was submitted admittedly, death was while unloading marble stones from lorry. Act of unloading of marble stones was being carried on under supervision of driver of lorry and same was specifically mentioned in column no.10 of complaint as well as column no.17 of charge sheet. When deceased had expressed apprehension about not being able to unload large marble stones, driver had stated that previously such stones were unloaded and prompted him to unload it quickly. Said act on part of driver would indicate that act of unloading lorry was at instance of driver and therefore, incident had occurred during course of employment and out of employment. Therefore, insurer was liable to pay compensation and on said ground sought for dismissal of appeal. 9. Heard counsel and perused judgment and award and copies of deposition and exhibits made available for perusal by counsel for parties. 10. In view of contentions, appeal was admitted to consider following substantial questions of law: “i) Whether incident in question occurred during course of employment and out of employment? ii) Whether insurer was liable to pay compensation?” 11. This appeal by insurer is on sole ground assailing finding of Commissioner about occurrence of incident during course of employment and out of employment. ii) Whether insurer was liable to pay compensation?” 11. This appeal by insurer is on sole ground assailing finding of Commissioner about occurrence of incident during course of employment and out of employment. In order to establish occurrence of incident in course of employment and out of employment, claimants relied on FIR, complaint, charge sheet, case diary, crime details report and PME report marked as Exs.P1 to 6. Perusal of Ex.P.2-complaint would reveal that it was filed by Sri Maheboob Sab S/o Manjale Sab Ghanewale, brother of deceased Mohammed Ismail. In complaint, it is stated that on date of incident i.e. on 25.01.2014, he received phone call at 1:00 p.m. asking him to come to Basaveshwara hospital. On reaching there, he was informed that Dr.Nitin S/o Dilip Thakur had called deceased and Mohammed Gaus at 9:00 a.m. for unloading marble stones. While, unloading marble stones, they found that marble stones were too large in size. At that time, driver stated that such stones were unloaded previously and prompted them to unload stones. While they were unloading, one marble stone fell on chest of deceased. 12. It was stated driver asked them to hurry up unloading and scolded them and when they asked for wooden poles for unloading, owner did not provide same and therefore owner and lorry driver acted negligently. In column 10 of FIR, it is stated that Mohammed Gaus, was unloading marble stones along with deceased informed complainant that at 9:00 a.m. Dr.Nitin Thakur S/o Dilip Thakur, asked them to unload marble stones. While unloading, one of stones fell on chest of deceased causing his death. Cl.no.17 of charge sheet would also reiterate same. In examination-in-chief, clamant no.1 examined as PW.1, stated that her husband along with other labourers were engaged by respondent no.5(owner of lorry) and while unloading marble stones, incident occurred leading to death of her husband. In cross-examination, specific suggestion made that death of Mohammed Ismail on 21.01.2014 at 9:00 a.m. was not in course of and out of employment with respondent no.5, was denied. 13. Admittedly, insurance policy in question was issued for coverage of risk of driver and employees employed in lorry. In absence of any material to indicate that employment was by respondent no.5 or on his behalf under authorisation by driver, claimants would not succeed in claim against respondent 5 - insured. 13. Admittedly, insurance policy in question was issued for coverage of risk of driver and employees employed in lorry. In absence of any material to indicate that employment was by respondent no.5 or on his behalf under authorisation by driver, claimants would not succeed in claim against respondent 5 - insured. Only material produced is police investigation records, which gravely contradict claimants’ assertion about employment of deceased by owner of lorry. Police investigation records are based on statement of complaint as per information provided by Mohamed Gaus, co-employee of deceased, who would have personal knowledge of complainant, while assertion in claim petition that deceased was employed by owner of lorry is based on oral assertion. When pitted against each other, documentary evidence would take precedence. Police investigation records specifically implicated owner of house- consignee for negligence and driver of lorry is implicated for rushing activity of unloading. Investigation records do not specifically state or support claimants assertion about employment of deceased by owner of lorry, on other hand, they indicate that nature of employment was spot contract between Dr.Nitin Thakur and workman for unloading marble stones. 14. Though learned counsel relied on Section 147(1)(b)(ii) of M.V.Act, 1988, which would mandate coverage of risk of employees against death or bodily injury to any passenger of transport vehicle, except gratuitous passengers of goods vehicle, caused by or arising out of use of motor vehicle in public place, same would only mean in case, incident had occurred while using motor vehicle, risk of employee would stand covered. Same would not appeal to this Court. Merely on account of coverage of risk of employee, it’s definition cannot be stretched to cover risk of all persons in connection with vehicle. Without specific material to establish contract of employment and about occurrence of accident during course of and out of employment, risk of employer would not be established. In fact, definition of employer under Clause-2(e) of Workmen Compensation Act, would extend to employees of contractor and principal employer would be liable. But, claim petition is not filed against Dr.Nitin Thakur. Consequently, conclusion arrived at by Commissioner is contrary to material on record and as such perverse. Therefore, substantial questions of law are answered in favour of appellant. Hence following: ORDER : (i) Appeal is allowed. Judgment and award dated 05.04.2024 passed by IV Addl. But, claim petition is not filed against Dr.Nitin Thakur. Consequently, conclusion arrived at by Commissioner is contrary to material on record and as such perverse. Therefore, substantial questions of law are answered in favour of appellant. Hence following: ORDER : (i) Appeal is allowed. Judgment and award dated 05.04.2024 passed by IV Addl. Senior Civil Judge and Commissioner for Employee’s Compensation, Kalaburagi, in ECA No.75/2014 against insurer is set-aside. (ii) Amount in deposit is ordered to be refunded to insurer.