THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.226 of 2014

JUDGMENT:

This Civil Miscellaneous Appeal is filed aggrieved by the

order dated 09.12.2013 passed in W.C.No.11 of 2012 on the file of the Commissioner for Employees’ Compensation and Assistant Commissioner of Labour IV, Hyderabad (for short

‘the Commissioner’).

2. Heard Mr. C.Buchi Reddy, learned counsel for the appellant/Opposite Party No.2 and Mr. T.Viswarupa Chary,

learned counsel for respondents.

3. Learned counsel for the appellant/Opposite Party No.2 (Insurance Company) submits that the Commissioner erred in considering that there was an employer - employee relationship between deceased and Opposite Party No.1 (owner). It is further submitted that the accident took place when the deceased was walking towards the tractor and was hit by two wheeler (Bajaj Chetak bearing No.AP 13 9076).

It is submitted that there is a dispute with regard to registration number of the tractor involved in the incident i.e., either AP 15AM 8968 or AP 25AM 8968.

4. That the accident occurred on 23.11.2011, while the deceased was walking towards the tractor, which turned turtle, in which paddy grass was loaded, the deceased was hit by a two wheeler. The owner of the vehicle in his evidence stated that the deceased was working as a tractor driver and was having family and children. It is contended that the deceased was the grandson-in-law of Opposite Party No.1 (the owner of tractor), that relationship of employer and employee was not prevailing at the time of accident. That the Commissioner, while dealing with the said issue, erred in recording a finding that employee was married person, having children and had to undertake the job to run his family and educate his children. That this finding is not correct. That the Commissioner had recorded a finding that employee has an option to file a claim either under Motor Vehicles Act, 1998 or Employees Compensation Act, 1923 and that the applicants have chosen to file under the Employees Compensation Act against the employer and the insurer is incorrect as the deceased had an option to file a third party claim against the insurer of the two wheeler.

5. Learned counsel for the respondents/applicants supported the order of Commissioner and submitted that the Commissioner rightly held that there was an employer – employee relationship between the owner and the deceased. It is further submitted that the deceased had a family to run and was working as a driver with his relative. It is also submitted that there is no truth with regard to the vehicle number involved in the accident. It is pointed out that the Commissioner had rightly held that the claim application is maintainable as there is no bar to file an application under Workmen’s Compensation Act. It is lastly urged that there is no infirmity in the order of the Commissioner and the appeal be dismissed.

6. Heard learned counsels, perused the record and considered the rival submissions.

7. Accident occurred on 23.11.2011. The deceased was a relative of the owner of the vehicle. The contention with regard to the employer-employee relationship is not valid, as canvassed by the counsel for Insurance Company. The deceased was married and was having a family. He had to educate the children and run the family. Merely because Opposite Party No.1 (owner of the vehicle) is a relative, it cannot be inferred that the deceased was not employed as driver at the time of accident. Ex.A5 is the driving licence of the deceased, authorized to drive non-transport tractor and trailer valid upto 31.03.2020.

8. It is deposed by the owner of the vehicle that the deceased was working as a paid driver on the tractor owned by him. There is no rebuttal to the statement, except for an averment, no proof is adduced to disbelieve the deposition of the owner. A case bearing Cr.No.300 of 2011 is registered in the Police Station of Shamirpet on 24.11.2011. The tractor was going from Pambanda to Achaipally Vil