The main legal point established in the judgment is the requirement to establish an 'employer' and 'employee' relationship and the causal connection between the cause of death of the employee and the use of the vehicle as essential elements for fastening liability on the insurer under the 'miscellaneous and special type of vehicle policy' and the Workmen's Compensation Act.

Aravind Kumar, J.

Appeal by the insurer challenging the correctness and legality of the order and award passed by the Commissioner for Workmen's Compensation, Tumkur (for short 'CWC') in WCA/CR-70 of 2007 dated 17.4.2008 fastening the liability on the insurer. Learned advocates appearing for the parties would fairly submit that though appeal has been admitted on 23.2.2010, substantial questions of law have not been formulated by oversight and they request the court to formulate the same.

2. A claim application under section 22 of the Workmen's Compensation Act (for short 'the W.C. Act') came to be filed by husband and children of one Rangamma seeking compensation contending inter alia that said Rangamma was working under the respondent No. 4 herein on a tractor-trailer as a loader for loading jelly and while she was discharging her duty on 27.6.2006 at Jalagiri quarry, near Amalapur of Tumkur taluk, a heavy rock rolled down from Jalagiri hill and in the course it got shattered into pieces and one stone piece fell on said Rangamma due to which she sustained grievous injuries and died at the spot. Owner and alleged employer of Rangamma, though served, did not appear before CWC and contest the matter. However, insurer, respondent No. 2, appeared and filed detailed statement of objections and contended that owing to a blast that was conducted, a stone fell on above said Rangamma and it would not cover the risk since she was not an employee working under the said respondent No. 4 and insurer is not liable to pay compensation as it had issued a 'miscellaneous and special type of policy'. The relationship of 'employer' and 'employee' came to be denied. Both the parties tendered their evidence and on evaluation of the same, claim petition came to be allowed in part by CWC by awarding a total compensation of Rs. 3,11,970 with interest at the rate of 12 per cent per annum payable after one month from the date of accident.

3. It is the contention of Mr. A.N. Krishna Swamy that there was no relationship of employer and employee and the policy issued to the offending vehicle would cover only the risk of an employee that too when the vehicle is/was under use at the time of accident. He would submit that carrying of employee-coolie in the vehicle is a must for insurer to indemnify the claim as otherwise it need not indemnify the claim. He would submit that there was no proof of Rangamma having been employed by respondent No. 4 herein, i.e., Siddaramaiah. On these grounds, he seeks for answering the substantial questions of law in favour of the appellant insurer. In support of his submission, he relies upon the following judgments:

(i) British India General Insurance Co. Ltd. Vs. Sabanna Sabanna and Others, ;

(ii) Mamtaj Bi Bapusab Nadaf and Others Vs. United India Insurance CO. and Others, (2010) 10 SCC 536;

(iii) Malikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd. and Another, AIR 2009 SC 2019;

(iv) Gottumukkala Appala Narasimha Raju and Others Vs. National Insurance Co. Ltd. and Another, AIR 2007 SC 2907;

(v) National Insurance Company Limited Vs. Smt. Renuka and Others, (2008) ILR (Kar) 5122;

(vi) Unreported judgment of a Division Bench rendered in Oriental Insurance Co. Ltd. v. Shafi, M.F.A. No. 9338 of 2005; decided on 27.8.2010 (Karnataka).

4. Per contra, it is the contention of Mr. K. Shantharaj, learned advocate appearing for respondent Nos. 1 to 3, that insurer has not disputed that deceased Rangamma was not an employee and nothing has been elicited in the cross-examination of claimants and as such, insurer is liable to indemnify the claim. In support of his submission, he has relied upon the following judgments:

(i) The Branch Manager, New India Assurance Co. Ltd. Vs. Smt. Mallamma, Puttamallaiah and Shahabuddheen, (2009) ILR (Kar) 1934;

(ii) National Insurance Co. Ltd. Vs. Balawwa, (1993) 2 KarLJ 406;

(iii) Sanjeev Kumar Samrat Vs. National Insurance Company Ltd. and Others, AIR 2013 SC 1125.

5. It is not i