The court upheld the existence of an employer-employee relationship despite familial ties, emphasizing that evidence presented post-remand was sufficient to establish liability and assess disability.

JUDGMENT :

(SYAM KUMAR V.M., J.)

This appeal, in the second round, is filed challenging the order in E.C.C.No.8 of 2016 (WCC No.212 of 2001) dated 28.05.2020 on the files of the Commissioner for Employees Compensation (Industrial Tribunal), Thrissur. The impugned order had been rendered pursuant to an order of remand by this Court in MFA (ECC) No.49 of 2018 on the same subject matter. Appellant was the 2^nd opposite party in the proceedings before the Employees Compensation Commissioner (ECC). Respondents 1 and 2 were the applicant and the 1^st opposite party respectively in the said proceedings. Parties are hereinafter referred to as per their status before the ECC.

2. Applicant had moved the ECC claiming lump sum compensation for the injuries sustained by him in a motor accident that allegedly occurred on 30.12.2000. It was contended that the applicant was working as a driver in a jeep owned by the 1^st opposite party and that on the relevant date, he met with an accident at Aloor while driving the vehicle. The applicant was aged 28 years and was deriving a salary of Rs.4,500 /-as monthly wages. Applicant claimed Rs.5 lakhs as lump sum compensation. The 1^st opposite party who is the owner of the vehicle, filed a written statement contending that though the vehicle had met with an accident on the date specified, the applicant had not sustained any injuries in the accident. The 2^nd opposite party, the insurance company, filed a written statement admitting the policy of the jeep. It was contended by them that there was no employer-employee relationship between the applicant and the 1^st opposite party as they are brothers. The purported employer-employee relationship put forth was only for the purpose of the case. It was also contended that the applicant did not sustain any injury in the accident arising out of and in the course of his employment. No notice of accident had been given by the applicant or by the 1^st opposite party to the insurer and the driver was not holding a valid driving licence and the vehicle was not having valid documents to ply on the road.

3. The ECC framed five issues and parties proceeded to tender evidence. AW1 to AW3 were examined from the side of the applicant and Exts.A1 to A11 were marked. From the side of the 1^st opposite party, RW1 was examined and Ext.R1 document was marked. From the part of the 2^nd opposite party insurer, no witnesses were examined. Ext.M1 was marked. Exts.X1 and X2 which are reports of the Medical Board were marked as court documents. After hearing the parties and appreciating the evidence tendered, the ECC passed an impugned order inter alia granting a compensation of Rs.3,02,285/- to the applicant along with simple interest and cost. It was found that the 1^st opposite party being the employer of the applicant is liable to pay the amounts awarded and that the 2^nd opposite party being the insurer is liable to indemnify the 1^st opposite party by contract of insurance. The 2^nd opposite party insurance company has preferred this appeal challenging the said order of the ECC.

4. The following substantial questions of law were framed for consideration:

“(i) Has not the Commissioner gone wrong in finding the alleged employer-employee relationship, especially when the claimant and the first opposite party are direct brothers and also when no material evidence was produced to prove the alleged employment?

(ii) Has not the commissioner went wrong in fixing the loss of earning capacity at 60% for the alleged injuries, especially when there is evidence to show that the appellant has renewed his driving license after the accident?

(iii) Has not the commissioner gone wrong in not exonerating the insurance company from the liability on account of breach of policy condition as the vehicle was not having a valid fitness certificate?”

5. Heard Sri.George Cherian, Senior Advocate, instructed by Smt.Latha Susuan Cherian, Advocate for the appellant (2^nd opposite party) and Sri.Babu Karukappadath, Advocate for