JUDGMENT

Najmi Waziri, J. (Oral)

FAO 530/2016 & CM Nos. 42350/2016, 42352/2016 & 42353/2016

1. The appeal impugns the order of compensation dated 17.08.2016 passed by the Commissioner, Employees Compensation, on the ground that the amount has been awarded to respondent no. 1 a person who has not proven his employment by the R-2 the owner of insured motor vehicle. The learned counsel for the appellant relies upon the deposition of respondent no.1- the injured, who has himself stated that he was employed by his father, an employee of respondent no. 2. Furthermore, respondent no. 2 has stated that respondent no. 1 (his injured son) was never his employee. Therefore, the injury suffered by respondent no.1, in the insured vehicle would not be indemnifiable, if any, by the appellant insurer.

2. The second ground is that there is no document or material to show that the respondent no. 1 was ever employed by respondent no. 2 or that he was paid any remuneration for his services by respondent no.2. Also, no driving licence was produced by respondent no. 1. Therefore, even if he were an employee of respondent no.2, the absence of a valid driving licence would disqualify him indemnity under the Insurance Act, 1938.

3. Thirdly, the appellant contends that the injury was not caused in a motor vehicle accident but on account of a fall from stairs as has been recorded in the MLC Report dated 10.10.2015 issued by Guru Nanak Eye Centre (a government hospital). The respondent recorded the history of the accident as: trauma to left eye "due to a fall from the stairs at 11.00 pm". This time would obviously mean that injury has been caused earlier in the night. The learned counsel for the appellant emphasises that there is no mention of the injury by or in a road/motor vehicle accident. Therefore, by the claimant's own statement: (i) no case is made out for the establishment of an employer-employee relationship and (ii) in the statement made before the doctor, immediately after the accident when he would have been in immense pain, suffering and shock due to the severe damage to his eye, that the injury was on account of a fall from stairs and not in a motor accident; clearly establishes that there was no employment of the injured by the vehicle owner and the injury was not suffered in an accident involving the insured motor vehicle. Therefore, there was no case for compensation under the Employees Compensation Act, 1923.

4. The learned counsel further refers to the deposition of respondent no. 1, which reads as under:

"I do not have any documentary proof that I was working with M/s Mehta Transport. This is correct that my father was employed in the establishment. And it is also correct that I was not employed as a driver to the employer i.e. R-1 in the application for claim. I do not have any appointment to prove that I was employed. I do not have any documentary proof to prove that I was employee to drive vehicle and I never received any salary or wages from the employer. Voluntary because this was my first trip. The burst of tyre on accident. I was accompanied by my father when I received injury my father also received injury in the accident. Father received minor injuries so that he was not examined because I do not have any medical record of my father treatment. My father was employed with the employer for the last 5 years. It is correct to suggest that due to my father employment the employer helped due to injury."

5. She also relies upon the statement of the employer who averred in the Written Submission, that the claimant was never employed by him as a driver for his vehicle bearing no. No.HR-55-F-1841, he had also denied that the claimant had sustained injury during the course of employment. Ergo, the employer had sought dismissal of the claim petition. Furthermore, the father of the claimant himself deposed that the accident happened around at 09.00 pm on the return journey near Khurja Railway Fatak, District Bulandshahr. The so