J U D G M E N T

The appellant herein is the second respondent in W.C.No.750 of 2005 filed by the first respondent herein / injured, claiming compensation for grievous injuries sustained by him, due to the accident happened on 29.01.2005, while he was driving an auto belongs to the second respondent herein / owner, under whom he was employed.

2. After full trial, the learned Commissioner for Workmen Compensation (Deputy Commissioner of Labour, Salem) awarded a compensation a sum of Rs.83,641/- in favour of the first respondent/ injured. Aggrieved by the order, the appellant / insurance company preferred this appeal. R1 represented through his counsel and R2 remained ex-parte.

3. As per the contention of the appellant, on the date of the accident, the first respondent / injured was not employed under the second respondent herein / owner, though the auto bearing Reg. No.TN 58.6226 belongs to the second respondent. Further, he contended that there is a lessee and lessor relationship between the first respondent and the second respondent and there is no employer and employee relationship between them, and the auto was driven by the injured for rent.

4. But the learned counsel for the first respondent / injured submitted that the said auto belongs to the second respondent and on the date of the accident the first respondent driven the vehicle as driver under the second respondent, thereby he denied the lessor and lessee relationship between them.

5. On a perusal of the records, it reveals that, Ex.P3 - Auto belongs to the second respondent herein and insured with the appellant's company on the date of the accident. The appellant also admits that the vehicle was also insured with them but denied the relationship between the injured and owner as employer and employee. As rightly pointed out by the first respondent herein, the owner of the vehicle remained as ex-parte in the entire proceedings. He has not appeared nor he produced any evidence to disprove the first respondent's contention. Thereby, he impliedly admits the relationship between the first and the second respondent as employer and employee. Therefore, eventhough no evidence was adduced on the side of the injured to prove his fact, but the conduct of the second respondent supports the contention of the injured.

6. Further, on the side of the appellant, there is no material evidence adduced took established lessor and lessee relationship between the first and the second respondent herein. Therefore, the objection raised by the appellant that there is no employer and employee relationship between the first and the second respondent herein is unsustainable one. The findings to that effect by the Tribunal are also a sustainable one. The appellant also contended that the injured was not possessed badge to drive the auto and he obtained licence only to drive the LMV vehicle. The injured also admits that he has possessed driving licence for LMV vehicle and not possessed badge to drive the heavy vehicle. The appellant further submits that since the injured not possessed valid badge, it is in violation of the policy, thereby they are not liable to pay the compensation.

7. As rightly pointed out by the first respondent / injured counsel, he possessed valid licence to drive LMV but badge was not obtained for that purpose he should not put into hardships because the vehicle was insured with the appellant / Insurance Company on the date of the accident. Hence, the appellant is to be directed to pay the compensation. But, the trial Court erroneously directed the 2nd respondent to pay the compensation on considering the non-possession of the badge by the injured.

8. It is just and a necessary, that the appellant / Insurance company should pay the compensation to the first respondent / injured. The counsel for the first respondent relied on the judgment of the Hon'ble Supreme Court in the case of “ Mukund Dewangan v. Oriental Insurance Company Limited” reported in '(2017) 14 Supreme Court Cases 6