Claimants must prove genuine employer-employee relationship with cogent evidence, especially documentary proof, when deceased is family member of owner; self-serving testimonies and fabricated documents insufficient to impose liability on insurer.

JUDGMENT :

SUSHIL KUKREJA, J.

The present appeal is maintained by the appellant/Insurance Company, against the award passed by the Court of learned Commissioner (IV), Shimla, exercising power, under Employee’s Compensation Act, 1923, in Case No. RBT 18-2 of 11/09, decided on 18.07.2013.

2. The brief facts of the case as set up by the claimants are that on 17.11.2008, while Ramakant alias Pankaj (since deceased), who was employed by Ram Swaroop (respondent No. 1 before the learned Court below) as driver in his vehicle bearing registration No. HP-09A- 2085, was discharging his duties as driver, the aforesaid vehicle met with an accident and deceased died on the spot. It has been averred that at the time of accident, deceased was 28 years of age, hale and hearty and was maintaining the claimants, who were totally dependent upon him. Consequntly, prayer for allowing the petition and awarding compensation was made.

3. On notice, the respondents contested the petition by filing different sets of replies. The employer i.e. Respondent No. 1 in his reply, took preliminary objections qua maintainability, that the vehicle in question was comprehensively insured with respondent No. 2,that the driver of the vehicle was fully insured with respondent No. 2, that the driver of the vehicle was possessing valid and effective driver licence at the time of accident, as such, Insurance Company was liable to indemnify the respondent etc. have been taken. On merits, contents of paragraphs No. 1 to 5 of the petition were admitted to be correct. It has been averred that respondent No.1 may be exonerated from the liability and Insurance Company may be directed to indemnify the owner.

4. The Appellant Insurance Company(respondent No. 2 before the learned Court below) in reply took preliminary objections qua maintainability, that deceased was not an employee with respondent No. 1 (owner), that deceased was not holding effective and valid driving licence at the time of accident and vehicle was being driven in breach of terms and conditions of the policy, that the vehicle was being plied without valid registration certificate, route permit and fitness certificate etc.pettion being bad for mis- joinder of necessary parties and being filed in collusion with respondent No. 1, who was father of the deceased, have been taken. On merits, it was denied that deceased Ramakant was employed as paid driver by respondent No. 1 in vehicle No. HP-09A-2085. It is averred that deceased had not died during the course of his employment and there was no contract of employment between the deceased and respondent No. 1. Lastly, prayer for dismissal of the petition has been made.

5. On pleadings of the parties, the following issues were framed:-

“1. Whether present petition is maintainable in this present form? OPP

2. Whether the claimant is entitled to compensation, if so, to what extent and from whom? OPP

3. Whether there exists any relationship of employer and employee between the claimant and respondent No. 1? OPP

4. Whether the vehicle in question was insured at the time of accident? OPR-1

5. Whether the deceased was not having valid and effective driving licence at the time of accident? OPR-2

6. Whether the vehicle in question was being plied in contravention to the terms and conditions of the Insurance policy? OPR-2

7. Whether the insurance company is