Familial relationships do not negate employer-employee status if remuneration is involved; the burden of proof lies with the insurance company regarding the absence of a valid driving license.

JUDGMENT :

NYAPATHY VIJAY, J.

1. The present C.M.A is filed under Section 30 of Employees' Compensation Act, 1923 questioning the order dated 24.07.2008 passed in W.C.No.7/2004 by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Anantapur.

2. The facts leading to this appeal are as follows:-

One Shaik Ibrahim was working as a driver in an auto bearing No.AP 02-U-5524 belonging to O.P.No.I. The said auto was insured with the appellant/O.P.No.II. The deceased was being paid Rs.3,500/- per month. On 23.09.2003, while driving the vehicle, the deceased met with an accident as another vehicle came in opposite direction near Thirunampalli Bus stop in a rash and negligent manner and caused the auto to lose control and in the process, the auto turned turtle and the deceased died on the particular spot. A criminal case was registered under Section 304-A IPC against the deceased himself vide Cr.No.42/2003 before Yadiki P.S., The claim was filed by the mother and the sister of the deceased for Rs.3,40,000/-.

3. The Commissioner on the basis of the pleadings framed four issues and marked Exs.A.1 to A.5 in evidence on behalf of the claimants and Exs.B.1 and B.2 on behalf of the respondents. The claimants examined as many as A.W.1, A.W.2 and A.W.3 while the insurance company examined one C.V.S.S. Prasad on its behalf.

4. The insurance policy is not in dispute and the dispute was with regard to lack of employer and employee relationship as the deceased was none other than the son of O.P.No.I and the claim was filed by the wife and daughters of O.P.No.I. The other ground which was urged was that the deceased was not having valid driving license.

5. The Commissioner taking into consideration the submissions made, allowed the claim and directed the respondents to pay Rs.3,19,137/- to the claimants after fixing the monthly salary of the deceased at the rate of minimum wages prescribed by the Government i.e. Rs.2,834/- per month as against claimed salary of Rs.3,500/-. Hence, the present C.M.A.

6. Heard Smt.Anasuya, learned counsel for the appellant/insurance company and Smt. N.Sasikala, learned counsel for the respondents/claimants.

7. The fact that the deceased was the son of O.P.No.I cannot be a basis to say that there is no employer and employee relationship amongst them. It is not the case of the appellant/insurance company that the deceased was driving the vehicle free of cost without taking any money from O.P.No.I. It is of common knowledge that notwithstanding the father and son relationship, some amount would be paid to the deceased and that amount qualifies for the employer-employee relationship and this Court does not find any illegality in the claim made by the dependents of the deceased.

8. As regards the non-filing of driving license, the Commissioner relied on the Judgment of the Hon'ble Supreme Court in National Insurance Company Ltd. vs. Swaran Singh 2004 (3) SCC 297 and opined that the burden of proof being on the insurance company, they have not come forward to discharge the initial onus and therefore after rejecting the plea of the insurance company, had awarded compensation by partly allowing the W.C.No.7/2004. Though, the law on this aspect had changed subsequently, but the above referred judgment of Hon'ble Supreme Court was holding the field as on the date of award by the commissioner. Now, to remand the case and to call upon the claimants to file the driving licence of the deceased at this length of time would be an improbability as more than 21 years have lapsed from the date of fatal accident.

9. Therefore, this Court does not find any merit in the appeal and the Civil Miscellaneous Appeal stands dismissed.

There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.