Familial relationships do not negate the existence of an employer-employee relationship, and insurance coverage applies when premiums for the employee's risk are paid.

JUDGMENT :

REKHA BORANA, J.

1. The present appeal has been preferred against the judgment and award dated 02.08.2024 passed by Motor Accident Claims Tribunal, Rajsamand in MAC Case No.120/2022 (CIS No.120/2022) whereby the learned Tribunal awarded a sum of Rs.10,95,181/- in favour of the claimant alongwith interest holding appellant Insurance Company also jointly and severally liable to pay the compensation.

2. Brief facts as pleaded in the claim petition are that Ramesh Gurjar was employed as a khalasi/cleaner on pickup bearing registration No.RJ-30-GA-9031, owned by respondent No.3. On 01.07.2021, he was travelling from Bundi towards Devgarh in the said pickup. At around 12:00 -1:00 PM, upon reaching near Gageda Gaon, the pickup being driven rashly and negligently by respondent no.2 driver, overturned, resulting in the fatality of Ramesh Gurjar. FIR No.0185/2021 pertaining to said accident was lodged at Police Station Gulabpura.

The offending vehicle, on the date of the accident, was insured with the appellant Insurance Company.

3. The claimant being the mother of deceased Ramesh Gurjar claimed compensation to the tune of Rs.51,50,000/- with an averment that her son used to work as Khalasi/cleaner and earned a monthly salary of Rs.15,000/-.

4. The learned Tribunal after framing the issues, evaluating the evidence available on the record and after hearing the counsel for the parties, awarded total compensation of Rs.10,95,181/- in favour of the claimant holding the Insurance Company also jointly and severally liable to pay the compensation.

5. Learned counsel for the appellant Insurance Company submitted that the learned Tribunal erred in deciding Issue no.3 against the Company and fastening liability on it to pay the compensation. He submitted that respondent no.3, the owner of the offending vehicle is the father of the deceased. It is the settled position of law that a person cannot be both, a tortfeasor and a beneficiary. It is the owner who is indemnified by the Insurer. The owner himself being held liable, the Insurer could not have been directed to pay compensation to the claimant, the wife of the owner.

6. Counsel submitted that the burden to prove that the deceased was travelling in the capacity of a Khalasi and not as the son of the owner was on the claimant. Further, it was imperative for the claimant to establish that there existed an ‘Employer- Employee Relationship’ between the father (respondent no.3 owner) and son (deceased Ramesh Gurjar). Further, no document whatsoever, was exhibited before the learned Tribunal to prove that any salary was being paid to the deceased by the owner.

7. Counsel for the Insurance Company further submitted that the learned Tribunal erroneously fastened liability on the Insurance Company to pay the compensation whereas the vehicle in question was admittedly a goods vehicle and no premium qua any passenger was charged/paid and thus, risk of the deceased who was the son of the owner of the vehicle in question and was travelling in the capacity of a passenger, could not have been termed to be covered under the Insurance Policy.

8. Per contra learned counsel for the respondent-claimant while supporting the impugned judgment/award submitted that the learned Tribunal rightly awarded the compensation while determining the relationship of employer-employee between the deceased and the owner of the vehicle in question.

9. Heard learned counsel for the parties and perused the material available on record.

10. A bare perusal of the material available on record reflects that the claimant (mother of the deceased) and owner (father of the deceased) in their statements have specifically deposed that they had been living separately for last 10 years and the deceased had been employed by his father as a Khalasi/Cleaner on his pickup.

AW-1 Bagtu Bai deposed as under :

^^esjk iq= gtkjhyky xqtZj dh blh fidvi ij [kyklh@fDyuj dk dk;Z djrk Fkk] ftls izfrekg 15]000@& :i;s osru feyrk FkkA gtkjh yky o eSa fiNys 10 o"kZ ds