IMPORTANT POINT
The establishment of an employer-employee relationship is essential for claiming compensation under the Employee’s Compensation Act, and the liability for interest on compensation lies with the employer in case of default.

ORDER :

(Nupur Bhati, J.) :

1. The instant Misc. Appeal has been filed under Section 30 of the Employee’s compensation Act, 1923 against the order dated 27.02.2015 passed by Employee’s Compensation Commissioner, Udaipur in case No.WC-03/2009 (J.L.C) titled as Smt. Shehnaz Bano & Ors. Vs. Khushbu Auto Finance Ltd. Udaipur & Ors. by which the application of the claimants filed under the Employee’s Compensation Act, 1923 (‘Act of 1923’) has been partly allowed and compensation of Rs.3,89,280/-along with interest @ 12 % per annum from the date of filing application i.e. 20.03.2009 till the date of realisation has been awarded.

2. Brief facts of the case are that the respondents/claimants filed and application before the Employee’s Compensation Commissioner, Udaipur under Section 3 of the Act of 1923 on 20.03.2009 claiming compensation of Rs.3,89,280/-on account of death of Nizamuddin. The case of the claimants is that two months prior to the accident, Nizamudding had been employed as driver on Auto No. RJ-27-PA-0143 which was belonged to respondent No.8 and 9 i.e. Khushbo Auto Finance Ltd. And Prakash Suthar at a salary of Rs.3,000/-per month with Rs. 1000/-by way of allowances. On 20.02.2009, Nizamuddin along with other passesngers in his Auto being driven by him was going to Baleecha which was turned turtle and he got fracture and severe injuries due to which he died. The appellant company being the insurer of the involved vehicle was impleaded as respondent and it was prayed that the liability for payment of compensation may be fastened on all the respondents jointly and severely.

3. Notices were issued to the respondent No.8 and 9 and respondent No.8 submitted its reply to the application in which the factum of Nizamuddin (deceased) being employed by it and that he was given a salary of Rs.3,000/-and Rs.1,000/-by way of allowance was denied. The respondent No.9 also submitted his reply to the application in which he has also denied that Nizamuddin was employed on the involved vehicle as a driver and was taking a salary of Rs.3,000/-and Rs.1,000/-as allowance. The appellant company also submitted its reply in which the factum of involved vehicle being insured with it was admitted. However, appellant company denied that Nizamuddin was in the employment of respondents No.8 and 9 and the factum of accident was also denied. Thus, the insurance company prayed that claim application be dismissal qua the appellant.

4. As per pleadings of the claim petition, following four issues were framed:

5. The claimants in support of the claim petition, led evidence and exhibited documents. The learned Commissioner on the basis of the evidence and exhibited documents, decided issue No.1 and 2 in favor of the claimants and decided issue No.3 and 4 related to the quantum of compensation as well as the parties who were liable to pay compensation to the claimants in favor of the claimants and against respondent No.8 and 9 and they were held liable to pay the compensation amount of Rs.3,89,280/-jointly and severally.

6. Learned counsel for the appellant insurance company submits that the Commissioner has committed grave legal error while deciding the issue No.1 related to the fact that the deceased was an employee of respondent No.8 and 9 merely on the basis of statement of wife of the deceased Smt. Shehnaz Bano as well as one witness namely Abdul Zahid Khan whose testimony could not be believed in the absence of any documentary evidence. Learned counsel further submits that the Commissioner could not come to a finding in absence of any documentary evidence that the deceased died in the accident during of the course of employment under them. He further submits that the issue No.2 that the deceased was being paid a salary of Rs.3,000/-per month with Rs.1,000/-per month as allowances cannot be sustained in absence of any reliable evidence available on record.

7. Learned counsel for the appellant further submits that the Commissioner has again committed a g