VALMIKI J. MEHTA, J.

C.M. Appl. No. 5105/2017 (for condonation of delay)

This is an application seeking condonation of delay of 112 days in filing the appeal.

For the reasons stated in the application the same is allowed and the delay in the appeal is condoned.

C.M. stands disposed of.

FAO No. 67/2017 and C.M. Appl. No. 5103/2017 (for stay)

1. This first appeal under Section 30 of the Employees Compensation Act, 1923 is filed by the Insurance Company impugning the judgment of the Employees Compensation Commissioner dated 29.7.2016 by which the Employees Compensation Commissioner has allowed the claim petition filed by the respondent no. 1 herein (claimant/applicant before the Employees Compensation Commissioner) and granted compensation of Rs.7,13,960/- along with interest at 12% per annum from 29.9.2012 till its realization.

2. The facts of the case are that respondent no. 1 pleaded that her deceased husband Sh. Nagender Kumar died on 15/16.10.2012 while working as a driver with the respondent no. 2 herein. It was pleaded that the deceased Sh. Nagender Kumar, husband of respondent no. 1 herein, was appointed as driver on Vehicle No. HR-69-C-2050 (10 tyre truck) owned by respondent no. 2 herein. It was pleaded that the deceased Sh. Nagender Kumar had gone from Haridwar to Chennai and had reached Chennai on 15.10.2012. On coming out from the office Sh. Nagender Kumar fell into a manhole of an underground water tank. Deceased Sh. Nagender Kumar is said to have drowned in the underground water tank and his body was discovered the next day and taken out from the water tank. Body of Sh. Nagender Kumar was taken to a Government hospital for post-mortem and which was conducted in Institute of Anatomy, Madras Medical College, Chennai. FIR No. 553/2012 was registered at Police Station–C5 Vengal, Chennai. Accordingly, it was pleaded that there was a relationship of employer and employee between Sh. Nagender Kumar and respondent no. 2 herein and that Sh. Nagender Kumar died as a result of accident of falling into a manhole during the course of and arising out of employment.

3. At this stage itself I may note that the claim petition filed by the respondent no. 1 herein before the Employees Compensation Commissioner was silent as regards the relationship between the respondent no. 1 herein/claimant and the respondent no. 2 herein and who was also the respondent no. 2 before the Employees Compensation Commissioner. Appellant herein, the insurance company, was respondent no. 1 before the Employees Compensation Commissioner. It has, however, subsequently come out on the record before the Employees Compensation Commissioner, and which is clear from the photocopy of the driving license filed by the respondent no.1/claimant/wife of deceased Sh. Nagender Kumar, that the deceased Sh. Nagender Kumar/husband of the respondent no. 1/claimant was infact the real brother of the respondent no. 2. This is being stated by this Court that in such cases of close relations between family members, issue of employer and employee will have to be more clearly proved than other cases where there is a small time driver of a private employer and who dies in an accident of the vehicle covered under the Employees Compensation Act.

4. Respondent no. 2 before the Employees Compensation Commissioner disputed the claim petition filed by the respondent no. 1/claimant. It was pleaded by the respondent no.2 that the truck in question was though in the name of respondent no. 2, but the same was actually of all the three sons of Sh. Jagat Ram. Sh. Jagat Ram was the father of the deceased husband of the respondent no. 1/Smt. Saroj and whose name was Sh. Nagender Kumar. Sh. Jagat Ram was also the father of the respondent no. 2/Sh. Sanjay Khatri. Respondent no. 2/Sh. Sanjay Khatri in his written statement further pleaded that all the three sons of Sh. Jagat Ram including deceased Sh. Nagender Kumar were joint owners of the vehicle because the father Sh. Jagat Ram though had pur