The relationship of employer-employee must exist to establish liability under the Workmen’s Compensation Act, and evidence of such a relationship is primarily a factual determination.

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This Appeal is filed under Section 30(1) of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘The Act,’ for short) by the appellant-Insurance Company, challenging the judgment and award dated 12.10.2011 passed in WC.NF.No.83/2008 by the Labour Officer and Commissioner for Workmen’s Compensation, Bagalkot (hereinafter referred to as ‘The Commissioner,’ for short).

2. Brief facts leading rise to the filing of this appeal, are as follows:

3. It is the case of the petitioner that he was working as a driver of an auto-rickshaw bearing Reg.No. KA-29/6495, belonged to respondent no.1. it is contended that on 27.01.2008, while the petitioner was driving the auto-rickshaw bearing Reg.No.KA-29/6495 as per the instructions of Respondent No.1, carrying passengers, from Badami to Ramdurg Cross towards Karadigudda village, the driver of an auto-rickshaw bearing Reg.No.KA-29/7085 was coming from Karadigudda side towards the Badami, in a rash and negligent manner, collided with the auto-rickshaw bearing Reg.No.KA-29/6495, and caused an accident. As the result, the petitioner sustained grievous injuries during the course and out of the employment. Thus, the petitioner, filed a claim petition under Section 22 of the Act, claiming compensation.

4. Notice was issued to respondent No.1-owner of the offending auto-rickshaw. Despite the service of notice, he remained unrepresented and was placed ex-parte.

5. Respondent No.2-the Insurance Company filed a statement of objections denying the averments made in the claim petition. It is contended that there is no relationship of employer-employee between the owner of the auto-

rickshaw and the petitioner. It is also contended that the there is breach of the terms and conditions of the policy by entrusting the vehicle to a person who did not possess a valid and effective driving license as of the date of the accident. Hence, prays to dismiss the claim petition against the Insurance Company.

6. The Commissioner, based on the pleadings of the parties, framed the relevant issues.

7. The petitioner, to substantiate his case, examined himself as P.W.1, examined the doctor as P.W.2, and marked 10 documents as Exs.P1 to P10. Conversely, the Insurance Company examined its officer as R.W.1, and no documents were marked. The Commissioner, after assessing the verbal and documentary evidence, allowed the claim petition in part and awarded compensation of Rs.1,49,292/- with interest, and held that the owner and the insurer are jointly and severally liable to pay the compensation amount and directed the Insurance Company to deposit the compensation amount. The appellant- Insurance Company, aggrieved by the judgment and award passed by the Commissioner in WC.NF.No.83/2008, has filed this Miscellaneous First Appeal.

8. Heard the arguments of the learned counsel for the appellant-Insurance Company and the learned counsel for the respondent-petitioner.

9. The learned counsel for the Insurance Company submits that there is no relationship of employer-employee between the owner of the auto-rickshaw and the petitioner. He submits that the driver of the auto-rickshaw did not possess a valid and effective driving license as of the date of the accident. The Commissioner did not consider these aspects and proceeded to allow the claim petition. The impugned judgment and award passed by the Commissioner is arbitrary and erroneous, and contrary to the records. Hence, on these grounds, he prays to allow the appeal and dismiss the claim petition.

10. Per contra, learned counsel for the petitioner submits that admittedly, the petitioner was working as a driver as of the date of the accident. He submits that the accident occurred during the course and out of the employment. He submits that there ex