The absence of a properly drafted contract does not negate the existence of an employer-employee relationship, especially when an insurance policy covering the employee is in place.

VALMIKI J. MEHTA, J.

1. This first appeal under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as „the Act’) is filed by the claimants impugning the judgment of the Employee’s Compensation Commissioner dated 18.12.2015 whereby the claim petition filed by the appellants under Section 22 of the Act was dismissed and wherein compensation was prayed on account of the death of the son of the claimants one Sh. Vipin Kumar.

2. The facts of the case are that the deceased was pleaded to have been employed as a driver at wages Rs.7,000/-per month with the respondent no.1 on the vehicle of the respondent no.1 TSR registration no.DL-01RK-6298. The deceased met with an accident on 6.8.2009 at 2.00 P.M. at Azadpur Fly Over, Delhi when the deceased was working in the course of employment with the respondent no.1. Sh. Vipin Kumar died due to injuries caused by the accident arising out of and in the course of employment. DD No.7A was lodged at Adarsh Nagar, New Delhi and post mortem was conducted in Babu Jagjiwan Ram Hospital, Delhi. Respondent no.1 was proceeded ex-parteand it was only respondent no.2/insurance company which contested the claim petition and filed its written statement. It was contended by the respondent no.2 that there is no relationship of employer and employee and that no documents were filed to show the relationship of employer and employee including payment of wages.

3. After pleadings were complete the trial court framed the following issues:-

“(i). Whether their exists employee-employer relationship between deceased Vipin Kumar and Sh. Sachin Bhatia and whether the accident resulting into death of deceased occurred during and in the course of employment with R-1 i.e. Sh. Sachin Bhatia.

(ii). If yes, whether the Claimants are entitled to compensation claim, claimed by them. If yes, what amount and what directions are necessary in this respect?”

4. The appellants/claimants thereafter led evidence and this aspect is recorded in para 5 of the impugned judgment and which para reads as under:-

“5. The Claimant filed his affidavit exhibited as PW1/A as evidence in this case along with documents i.e. Photocopy of election I-card of deceased Vipin Kumar (Exhibited as PW1/1), Copy of driving license of deceased Vipin Kumar (Exhibited as PW1/2), Copy of death certificate of deceased Vipin Kumar (Exhibited as PW1/3), Copy of Post Mortem Report of deceased conducted by Babu Jagjiwan Ram Memorial Hospital, Delhi (Marked as PW1/4), Copy of School Leaving Certificate of deceased Vipin Kumar (Marked as PW1/5), Copy of Election I Card of Claimant Sh. Suraj Muni (Exhibited as PW1/6), Copy of Election I Card of Claimant Smt. Urmila (Exhibited as PW1/7), Copy of Ration Card (Exhibited as PW1/8). He has deposed that he is not an eye witness of the accident. Claimant also deposed that he does not have any documentary proof to show that the deceased was employed with R-1 and that he was earning Rs.7000/-per month. Claimant also deposed that the deceased Vipin Kumar was driving the offending vehicle for the last 2 years before his death.”

5. Employee’s Compensation Commissioner has dismissed the claim petition by observing that appellants/claimants have failed to prove that there was a relationship of employer and employee as no details have been given of payment of salary by the respondent no.1 and nor it was proved that any salary was paid by the respondent no.1 to the deceased. Employee’s Compensation Commissioner held that the deceased was driving the vehicle on per day basis from the respondent no.1. Hence the claim petition was dismissed.

6. Learned counsel for the appellants has drawn the attention of this Court to the judgment dated 26.3.2014 in FAO No.37/2014 titled as National Insurance Co. Ltd. Vs. Smt. Badami Devi and Ors. wherein in similar circumstances of issue arising as to the relationship of employer and employee it was held by this Court that it is not as if that for such employment in a TSR the