The central legal point established in the judgment is the requirement for irrefutable evidence to establish the employee-employer relationship and the importance of statutory requirements in fixing liability.

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 30 (1) of the Employees Compensation Act, 1923, against the award and decree dated 11.12.2017 made in W.C.No.360 of 2016 on the file of the Commissioner, Workmen’s Compensation Tribunal, DCL, Coonoor.)

1. The award and decree dated 11.12.2017 made in W.C.No.360 of 2016, is under challenge in the present civil miscellaneous appeal.

2. The National Insurance Company Limited is the appellant and the second opposite party in the claim petition. The respondents who are all the legal heirs of the deceased, filed an application under Workmen Compensation Act seeking compensation on the ground that on 11.12.2011 at about 4.30 a.m., in order to execute the instructions of the fourth respondent R.Varadharaj, the deceased loaded the bus gear box in Mahindra Jeep bearing Registration No.TN 28 U 1690 and driving the same from Coimbatore to Sangagiri via Bavani-Salem Main Road. The said Mahindra Jeep met with an accident by dashing in a Tamarind Tree and the deceased Kumar sustained fatal injuries and thereafter died on 08.10.2012. It is contended that the owner of the Mahindra Jeep is none other than the father of the deceased R.Varadharaj/fourth respondent.

3. In this context, the Deputy Commissioner of Labour adjudicated the issues and arrived a conclusion that the respondent claimants entitled for compensation of Rs.6,51,143/- along with interest at the rate of 12% per annum. Challenging the said award, the Insurance Company has chosen to file the present civil miscellaneous appeal on the substantial question of law that the appellant is not liable to pay compensation, in view of the fact that the respondent claimants had not established the employee-employer relationship between the fourth respondent and the deceased Kumar, which is mandatory. The deceased cannot be presumed as a paid driver and such presumption cannot be the basis for grant of compensation under the insurance policy.

4. This apart, it is contended that the Mahindra Jeep which met with an accident is a private vehicle and not a commercial vehicle or a tourist vehicle. The vehicle being a private vehicle and the son was driving the vehicle, the Deputy Commissioner of Labour ought not to have presumed that the son was working as Driver with his own father and driving a private vehicle and such presumption not supported with any document, is unacceptable.

5. The learned counsel for the appellant reiterated that as far as the private vehicles are concerned, the liability can be questioned by the Insurance Company as Section 147 of the Motor Vehicles Act insist statutory liability in respect of third person involved in the accident under goods carrier. As far as the private vehicles are concerned, there is no specific mentioning in the statute and therefore, the liability is not a statutory liability and it is a contractual liability. Being a contractual liability, an application filed under the Workmen Compensation Act, the claimants are bound to establish the employee-employer relationship within the meaning of the Workmen Compensation Act, failing which, the liability cannot be fastened on the Insurance Company based on the insurance policy. In support of his contention, the learned counsel for the appellant reiterated that fixing of liability based on certain presumptive factors is unsustainable and therefore, on this question of law, the appeal is to be allowed.

6. This apart, there is no statutory liability fastened on the Insurance Company under Section 147 of the Act, in view of the fact that the deceased son was driving the private vehicle stands in the name of his own father. Thus, it is a contractual liability and in order to establish the contractual liability, the claimants ought to have establish the employee-employer relationship as contemplated under the provisions of the Workmen Compensation Act. Therefore, the learned counsel for the appellant is of the firm opinion that the employee-employer rela