The main legal point established in the judgment is that there is no prohibition for a son to work under his father and the burden of proof lies with the appellant to establish the absence of a valid driving license.

V.M. Velumani, J.

This Civil Miscellaneous Appeal has been filed against the order dated 30.09.2010, passed in W.C. No. 59 of 2007, on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Thirunelveli.

2. The appellant / Insurance Company is the second respondent in W.C.No.59 of 2007, on the file of the Commissioner for Workmen's Compensation, Thirunelveli. The respondents 1 to 6 filed the above said claim petition against the 7th respondent and appellant. According to the respondents 1 to 6, the husband of the first respondent, father of the respondents 2 to 6 was working as a driver of the 7th respondent and died during and in the course of his employment under 7th respondent. The appellant is the insurer of the vehicle. Hence, they filed the claim petition claiming a sum of Rs.10,00,000/- as compensation, for the death of one Jeganathan.

3. The 7th respondent remained ex parte before the Tribunal.

4. The appellant resisted the claim on the ground that the deceased was son of the 7th respondent and was not an employee of the 7th respondent and at the time of accident, the deceased was not having valid driving licence. The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Thirunelveli, considering the pleadings, oral and documentary evidence, held that there is no prohibition for the son to work under father and held that the accident occurred during and in the course of employment and the appellant, who is insurer of the vehicle is liable to pay compensation to the respondents 1 to 6. By applying formula, the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Thirunelveli, awarded a sum of Rs. 1,75,440/- as compensation.

5. Against the said order, the appellant / Insurance Company has filed the present appeal.

6. The learned counsel appearing for the appellant relied on the following Judgments and reiterated the averments made in the counter as well as the grounds in the appeal.

(i) (National Insurance Company Limited Vs. Nagaraj and Others, (2008) 2 TNMAC 572), wherein at paragraphs 13 and 14, it has been held as follows :

"13. To Sum-up, the first respondent took his wife and daughters and his other family members and friend to Rameswaram as personal trip of pilgrimage and on return he met with an accident. It could not be stated that the accident took place in the course of the employment, nor he was an employee under the second respondent. It is to be observed that there is no evidence to show that the respondent is an employee under the second respondent. Ignoring the material facts available in this case, the Workmen Compensation Commissioner has mechanically passed the order by observing that the relationship between the appellant and first respondent is the employee of the second respondent. The said finding is not at all sustainable.

14. In view of the above said discussion, the first respondent could not get the workmen compensation. The observations and findings of the workmen's compensation Commission, need interference of this Court which have to be reversed. The impugned order suffers from infirmity, which is liable to be set aside and accordingly, the same is set aside."

(ii) (Gottumukkala Narasimha Raju and Others Vs. National Insurance Company Limited, (2007) 1 TNMAC 460), wherein at paragraphs 24 to 26, it has been held as follows :

"24. In our considered opinion, it is wholly absurd to suggest that the husband would be a “Workman” of his wife in absence of any specific contract. We have no doubt in our mind that for the purpose of proceeding under the 1923 Act, only the appellants have concocted the story of husband and wife living separately in view of certain disputes, the question of husband being a “workman” under her appears to be a far" fetched one.

25. Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overal