The central legal point established in the judgment is the interpretation of the employment relationship and the definition of 'workman' under the Workmen's Compensation Act.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 30 of Workmen Compensation Act, to set aside the award dated 14.03.2011 received on 16.03.2011 made in W.C.No.165 of 2007 on the file of the Commissioner of Workmen Compensation (Deputy Commissioner of Labour), Madurai.)

1. This Civil Miscellaneous Appeal is filed as against the judgment and award passed by the Commissioner of Workmen's Compensation (Deputy Commissioner of Labour), Madurai in W.C.No.165 of 2007 dated 14.03.2011 by the appellant insurance company.

2. For the sake of convenience, the parties are addressed herein as per the rank in W.C.No.165 of 2007.

3. The brief facts leading to the filing of the Civil Miscellaneous Appeal is as follows:-

The petitioners are the legal heirs I.e. wife and children of the deceased workman namely Sundaram. The first respondent is the employer of the deceased workman and the second respondent is the insurance company. On 03.06.2006, the deceased was travelling in a van- goods carrier belonging to the first respondent bearing registration No.TN-63-Y-6060. On 03.06.2006 at about 11.45 p.m., while the said van was plied from Puduvayal to Madurai, along with rice bags, the first respondent driver drove the van in a rash and negligent manner and dashed the van as against a tamarind tree. As a result of which, the deceased who travelled in the said van sustained grievous injuries and died on the spot and he was 53 years old at the time of death. The deceased person was engaged by the first respondent as loadman and also for the purpose of collecting the charges for transporting goods and for canvassing loads. A criminal case was registered by Nachiyapuram Police Station under Section 304A of IPC in Crime No.56 of 2006 as against the driver of the first respondent. In view of the death of the deceased, the petitioners have filed a claim petition seeking compensation of Rs.2,85,360/-.

4. The second respondent had filed a counter and emphatically denied that there was no employer and employee relationship between the first respondent and the deceased and hence the claim itself is not maintainable before the Commissioner of Workmen Compensation. It is further contended that the deceased actually travelled in a goods carrier as an unauthorized/gratuitous passenger only and in view of the fact that such a class of passenger is not covered by the policy a claim under the Motor Vehicles Act is not maintainable. Further this claim is filed fraudulently under the Workmen's Compensation Act by stating that the deceased was actually working under the first respondent. It is also contended that there is no negligence on the part of the driver of the goods carrier bearing Registration No.TN-63-Y-6060 and the accident had occurred only due to the negligence of the deceased himself. Having travelled in the said vehicle as unauthorized passenger without following the traffic rules in any event the claim of Rs.2,85,360/- though restricted, is not tenable for the death of the deceased without concrete proof of employment with the first respondent.

5. However, the learned Commissioner had admitted the case in W.C.No.165 of 2007 and framed four issues and examined P.W.1 and marked Ex.P1 to Ex.P5 on the side of the petitioners and on the side of the respondents, examined R.W.1 and R.W.2 and marked Ex.R1 to Ex.R5. The learned Tribunal having scrutinize various documents produced before it and also considering the evidence deposed before the same and on the basis of arguments putforth by both the parties, came to a conclusion that the deceased was the workman of the first respondent and he died only during the course of employment. That apart, on the basis of G.O.Ms.No.47 Labour and Employment Department dated 01.08.2003 the learned Tribunal fixed the monthly salary of the deceased equivalent to that of loadman at Rs.3,104 + monthly