The Oriental Insurance Co. Ltd. vs K. Vipin and K. Kesavan

Thottathil B. Radhakrishnan, J.—The insurer is the appellant. The award passed by the Workmen''s Compensation Commissioner is under challenge. Learned counsel for the appellant argued that the impugned award is palpably perverse in as much as there is absolutely no credible material on record to hold that there was any employer-employee relationship between the alleged injured claimant and the insured, who is the father of the claimant. He also argued that the Commissioner erred in law in awarding compensation on the basis of Ext.A1 disability certificate and also in awarding interest as has been done.

We have looked into the entire records.

The claimant did not tender oral evidence. Instead, an application was filed for examination of his mother on the ground that the claimant has emotional stress. The mother gave evidence as AW2. She said that her son was driving the private car belonging to her husband. The claimant''s father was running a business enterprise. The plea set up is that the son was working for the father, thereby creating an employee-employer relationship and was driving the car in the course of his employment. The father, who is the first respondent in the proceeding before the court below, was also in the car at the time of the alleged accident. He did not however file any pleading or even depose before the Commissioner. The car driven by the claimant collided with a motor cycle leading to the registration of a crime and prosecution in which the claimant was arrayed as the accused. His plea appears to be that he turned emotionally insecure with different aspects relatable to stress owing to that incident and is therefore unable to speak up. The mother deposed that he turned so after the accident. She specifically denied the availability of any documentary evidence, at least in the course of business of the father, to show that the son was employed by the father. Existence of an employer-employee relationship is necessary to sustain a claim under the Workmen''s Compensation Act. There is no shred of material to hold that the son was employed in the establishment of the father. We have to presume that in the common course of business of an establishment, any payments made to the employee by the employer, even if it is between the father and son, would be reflected by the books of accounts or other materials of the establishment. That is also the requirement of the laws. In the absence of such materials being available, we are unable to sustain the finding of employer-employee relationship rendered in this case by the Commissioner. That finding is bereft of any legal foundation on the available materials. And is hence perverse. Such issue gives rise to substantial questions of law for interference in this appeal.

We also recall the Motor Vehicles Act and Rules in order to say that the mere possession of driving licence does not enable a driver to prove that he is working as driver under an employer. There is no evidence that the claimant possess due and necessary licence and authorisation in terms of the laws, to be employed as a driver by another. With the aforesaid, we are unable to sustain the impugned award. The same does not stand on counts of law.

In the result, this appeal is allowed vacating the impugned order and consequentially dismissing the claim petition. Any amount under deposit will be refunded to the insurer forthwith. No costs.