BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.07.2024 CORAM THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR C.M.A(MD)No.1001 of 2017 and C.M.P(MD)No.10329 of 2017 The Manager, Royal Sundaram Alliance Insurance Co.Ltd., Sundaram Towers, 45 & 46, Whites Road, Chennai-600 014, ... Appellant/2^nd Respondent Vs.

1.Maheswari

2.Minor Gunasekaran

3.Minor Janani

4.Kaliappan

5.Balappa Gowandar ... Respondents/Claimants

6.Kathirvel ... Respondent/1^st Respondent Prayer: Civil Miscellaneous Appeal is filed under Section 30 (1) of Workmen's Compensation Act, 1923 to to set aside the order, dated 27.08.2015 made in W.C.No.80 of 2011 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul.

For Appellant : Mr.M.Jerin Mathew For R1-R5 : No Appearance For R6 : Mr.K.Suresh

JUDGMENT

The present appeal has been filed by the insurance company challenging the award passed by the Commissioner of Workmen's Compensation, Tiruchirappalli in W.C.No.80 of 2011 on the ground of liability.

2. According to the claimants, the deceased was working as a loadman in a Eicher van owned by the 1^st respondent and insured with the 2^nd respondent. They have further contended that on 20.06.2008 at about12.00 noon, while the victim was on duty as a loadman, the driver of the van had driven the same in a rash and negligent manner and the vehicle got capsized. The victim had succumbed to the injuries. They have prayed for a compensation of Rs.10,00,000/-.

3. The owner of the vehicle had filed a counter contending that the deceased had not worked under him as a loadman, but he is an employee of Rasi Power Block company. He had further contended that the insurance was subsisting and the driver was having valid and effective driving license on the date of the accident. Therefore, they have to be indemnified by the insurance company.

4. The insurance company has filed a counter contending that the claimants have to prove the employer-employee relationship between the deceased and the 1^st respondent. They have also questioned the quantum of compensation as prayed for.

5. The Commissioner after considering the oral and documentary evidence, arrived at a finding that the deceased was a loadman in the Eicher van owned by the 1^st respondent and he had died in the course of employment. The Commissioner has proceeded to award a compensation of Rs.4,22,340/-. Challenging the same, the insurance company is filed this appeal.

6. This appeal has been admitted on the following substantial questions of law:

“a) Whether employer employee relationship exist between the sixth respondent and the deceased?

b) Whether the lower Authority was justified in determining the salary of the deceased notionally without any materials to substantiate the same?

c) Whether the Lower Authority was justified in applying relevant factor in the absence of any age proof?”

7. According to the learned counsel appearing for the appellant, the claimants have not established the employer-employee relationship between the deceased and the 1^st respondent in the claim petition. He further contended that the authority had fixed the notional income without any materials to substantiate the same. He has also questioned the application of relevant factor in the absence of age group.

8. Per contra, the learned counsel appearing for the 1^st respondent in the claim petition / owner of the vehicle had contended that the claimants have not established the employer-employee relationship and therefore, they are not entitled to receive any compensation.

9. Though the claimants have been served, there is no representation either in person or through counsel.

10. I have carefully considered the submissions made on either side and perused the material records.

11. The vehicle owned by the 1^st respondent was involved in an accident at about 12.00 noon on 20.06.2008. The vehicle is insured with the 2^nd respondent and it covers loadman also. These facts are not in dispute. The only issue that arises for consideration