The central legal point established in the judgment is the requirement of evidence to establish the employer and employee relationship in Workmen Compensation cases.

JUDGMENT

1. These appeals are at the instance of the claimants and the insurance company calling in question the legality and validity of the award dtd. 12/5/2009 passed in W.C.No.KAPKA/F-04/2007 by the Labour Officer and Commissioner for Workmen Compensation, Division-2 at Chikmagalur.

2. The claim petition proceeded on the allegation that one Chandramma @ Bhanubai (hereinafter referred to as 'deceased') was working as a coolie in the tractor and trailer bearing Registration No.KA-18-3641 & 3642 which was owned by respondent No.1-Ningegowda, before the learned Commissioner and insured with the appellant- insurance company. Respondent No.3-K.S.Raju before the learned Commissioner was subsequently impleaded on the allegation that he was a contractor who had employed the deceased. It is further alleged in the claim petition that on 25/8/2001 at about 3.50 p.m. when the deceased was proceeding in the tractor and trailer in question, on account of the rash and negligent driving of the driver of the tractor, it met with an accident resulting in the death of the deceased.

3. On issuance of notice by the learned Commissioner, respondent Nos.1 to 3 appeared before the learned Commissioner. Respondent No.1 Ningegowda filed a detailed written statement denying the very employer and employee relationship between himself and the deceased. Respondent No.2 who is the appellant-insurance company filed a detailed written statement denying all the material allegations made in the claim petition. Respondent No.3 also filed a written statement denying the averments made in the claim petition.

4. During the enquiry before the learned Commissioner, claimant No.1 examined himself as PW-1 and got marked Exs.P1 to P9. Respondent No.1- Insurance Company examined one of its officials as RW-1 and also examined the investigator appointed by it as RW-2 and Exs.R1 to R5 were marked.

5. Learned Commissioner upon hearing the learned counsel on both sides and perusing the records, allowed the claim petition in part and awarded a compensation of Rs.4,42,740.00 with interest thereon @ 12% p.a. fastening the liability to pay the same by respondent No.2-insurance company.

6. Learned counsel for the claimants in support of their appeal submitted that the compensation awarded is highly inadequate and the income of the deceased taken at Rs.4,000.00 per month is on the lower side. He, therefore, submitted that the compensation awarded requires to be enhanced and the appeal requires to be allowed.

7. Learned counsel for the insurance company, per contra, submitted in support of his appeal that the finding recorded by the learned Commissioner that there exists a relationship of employer and employee between respondent No.1 Ningegowda and the deceased is based on no evidence and therefore it is liable to be set aside. He also submitted that the tractor and trailer in question was covered with a Farmers Package Policy and therefore it did not cover the risk of accident to a coolie in the said trailer. He also submitted that the policy clearly disclaimed any liability if the accident took place while the tractor and trailer was being used for hire purpose. He also submitted that the evidence placed before the learned Commissioner clearly shows that the respondent No.3-Rajegowda had taken the tractor and trailer on hire basis and the accident having taken place while transporting large number of coolies to the work site, the insurance company is not liable for paying the compensation and therefore the appeal should be allowed and the claim petition should be dismissed.

8. I have given my anxious consideration to the submissions made on both sides and carefully perused the records.

9. The substantial question of law that arises for consideration in this case is: Whether the finding of the learned Commissioner that employer and employee relationship between the owner of the tractor and trailer Ningegowda and the deceased is established, is based on evidence or not?

10. The cl