Employer-employee relationship must be substantiated; lack of evidence from insurer leads to liability for compensation under Employees' Compensation Act.

JUDGMENT :

UMESH M ADIGA, J.

This is insurer's appeal against the judgment and award dated 22.08.2013 passed by the Workmen's Compensation Commissioner, Sub Division-1, Chikkamagaluru (for short 'Labour Commissioner').

2. The parties are referred to as per their ranking before the Labour Commissioner.

3. Brief facts of the case are that one Ganesh Kumar was the son of both the claimants. He died in an accident on 22.03.2001, while he was driving the car bearing registration No.KA:19/M-8372 belonging to respondent No.1. It was further contended that deceased Ganesh Kumar was an employee of respondent No.1 and as per his direction, working as driver of the car of respondent No.1 and he was earning Rs.4,500/- per month as salary, with Bata of Rs.50/- per day. The claimants assert that relationship between respondent No.1 and Ganesh Kumar was employer and employee. It is further case of the claimants that the said vehicle was insured with respondent No.2. The claimants being the parents of deceased and depending upon Ganesh Kumar, they are entitled for compensation. With these reasons, prayed to award compensation.

4. Respondent No.1 contended before the Labour Commissioner that there was no relationship of an employer and employee between himself and deceased Ganesh Kumar. Prior to the accident, respondent No.1 had sold the said vehicle to Ganesh Kumar on 15.10.2000 and respondent No.1 had signed form No.29 and 30 to transfer of the vehicle in the name of Ganesh Kumar and he delivered the said vehicle to Ganesh Kumar along with form Nos.29 and 30 and H.P. clearance certificate of Harsha Finance, Mangalore in Form No.35. After filing of the petition, he came to know that Ganesh Kumar did not submit the form Nos.29 and 30 to RTO, Mangaluru and got transferred his name in the Registration certificate. He denied the contentions of the claim petition and prayed to dismiss the claim petition.

5. The contention of respondent No.2 - insurer is in line with the contentions of respondent No.1. In addition to that respondent No.2 contended that deceased had no valid and effective driving license to drive the said vehicle. There was no employer and employee relationship between respondent No.1 and deceased - Ganesh Kumar. Therefore, it is not liable to pay the compensation and it also denied its liability to pay compensation on other technical grounds. With these reasons prayed to dismiss the claim petition.

6. The Labour Commissioner framed necessary issues for determination.

7. The claimant examined one witness and marked two documents as Exs.P1 and P2. Respondents have not led oral evidence but marked two documents as Ex.R1 & R2.

8. After hearing both the parties, the Labour Commissioner by impugned order held that there exists relationship of employer and employee between deceased Ganesh Kumar and respondent No.1; Ganesh Kumar died during course of employment; and further held that Ganesh Kumar was receiving salary of Rs.4,500/- per month and bata of Rs.50/- per day. Applying the necessary factor, calculated the compensation and passed impugned award, directing respondents No.1 and 2 to pay the same.

9. I have heard the arguments of learned counsel for the appellant as well as respondent No.2.

10. This appeal was admitted to consider the following substantial question of law:

i. Whether claimant prove that there exists employer