K. Ramanna, J.
1. Appellant has filed this appeal under Section 30(1) of the Workmen's Compensation Act challenging the judgment and award dated 26.3.2003, passed in WCA/SR/450/2000 on the file of the Labour Officer and Workmen's Compensation Commissioner, Bijapur.
2. Substantial question of law involved in this appeal is, whether the Commissioner for Workmen's Compensation is justified in holding that there is a relationship of master and servant in between respondent No. 1 and the deceased. If so, whether the appellant is liable to indemnify the respondent No. 1?
3. The brief facts of the case are that respondent No. 2 is the wife of respondent No. 1. Respondent No. 1 is the owner of Maruti car bearing No. MH 13-F 0504. The deceased Umesh Dengi was the son of respondents and he was working as driver under the respondent No. 1. Respondent No. 2 filed a claim petition claiming that the deceased Umesh met with an accident and succumbed to the injuries during the course of employment. There was relationship of employer and employee between respondent No. 1 and the deceased. The respondent No. 2 and the deceased were living separately in Adarshanagar, Bijapur whereas, respondent No. 1 was residing at Solapur. Since the respondent No. 2 was wholly dependent on the income of her son, she filed a claim petition before the Commissioner for Workmen's Compensation, seeking compensation for accidental death of her son during the course of his employment. The Commissioner allowed the said claim petition and awarded compensation of Rs. 2,74,937 to respondent No. 2 and the liability has been fastened on the appellant insurer to indemnify the owner. Hence, the appellant insurer has come up with this appeal.
4. Appellant contended that respondent No. 1 is none other than the husband of respondent No. 2. Respondent No. 2 filed a claim petition against her husband for the death of her son in a motor vehicle accident. There is no material placed on record before the Commissioner for Workmen's Compensation to show that the said Umesh died during the course of employment. No documents have been produced to prove the relationship of employer and employee. Therefore, the Commissioner has grossly erred in holding that deceased had sustained injuries in the course of employment. Therefore, he prays that appeal be allowed.
5. While arguing the case, the learned Counsel for appellant relied on the decision of Apex Court in Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd. 2007 ACJ 1025 (SC), wherein it was observed that technically, it may be possible that the husband is employed under the wife, but while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bonafide.
6. The learned Counsel for the appellant drew my attention to the admissions made by the claimant, PW 1, before the Commissioner, stating that, she has not produced any documents to show that she has taken divorce from her husband and living separately. So also, she has not produced any documents to show that she was residing at Bijapur. But she has stated that for the last three to four years, she is residing at Bijapur in her own house. She has also not produced any salary certificate to show that her son was getting Rs. 3,000 per month. Therefore, it is argued that liability fixed on the insurer by the Commissioner is liable to be set aside.
7. The learned Counsel for respondent No. 2 contended that there is no hard and fast rule that son of the owner of the vehicle should not be a driver working under his father. Admittedly, the vehicle was involved in the accident while carrying some relatives. Respondent No. 1 who is the owner of the vehicle admits that the deceased Umesh was working as a driver under him and he met with an accident while discharging his duty as a driver. Since the risk of the driver is covered by the policy issued by the appellant, appellant is liable to indemnify the owner.
8. The learned Counsel for respondent No. 2 also contended that the decision relied on by the appellant in Gottumukkala Appala Narasimha Raju's case 2007 ACJ 1025 (SC), is not applicable to the facts involved in this appeal. He has relied on the decision of this Court in Oriental Insurance Co. Ltd. v. Hanumant , wherein it is held thus:
(2) ...It is not uncommon amongst the business family to engage their own kith and kin on employment for doing the business or commercial activity. Merely because in such a situation no wages are paid in cash is also not a ground to infer absence of a legal relationship of employer and employee, since there would always be consideration in kind computable in terms of money for the services rendered. The parties would not go for documentation of the contract nor create any documentary material to prove payment of wages in view of the peculiar family relationship...
9. He has also relied on the judgment of this Court in Manohar Bhimappa More v. Mahadev Bhimappa More , wherein it is held thus:
Workmen's Compensation Act, 1923, Section 30 Liability of insurer-The fact that the injured was the brother and guarantor for repayment of the loan was not a valid reason to hold that he was not a workman employed in connection with the tractor-trailer.
In the rural lifestyle, it is not uncommon to find the practice of oral appointment for specific purpose and time. Many a time, the persons in the family would be employed for doing the work instead of employing strangers. There is no inhibition in law for employment of member of the family in connection with the tractor-trailer. In view of the peculiar family relationship it is absurd to insist on documentary proof of appointment and the payment of wages by cash as the only mode of consideration for proof of employment.
10. No doubt, respondent No. 1 is none other than the father and respondent No. 2 is the mother of the deceased Umesh. Respondent No. 1 is the owner of Maruti van which was involved in the accident. Respondent No. 1 admitted the relationship of employer and the employee with himself and the deceased. It is seen that respondent No. 2 has claimed that she is the resident of Bijapur whereas respondent No. 1 who is the owner of the vehicle, is the resident of Solapur. In view of the law laid down by this Court in Oriental Insurance Co. Ltd. v. Hanumant 2006 ACJ 251 (Karnataka), it has to be held that the fact that parties are father and son is not a ground to infer the absence of relationship of employer and employee under the Act. In the instant case, respondent Nos. 1 and 2 are living separately and according to the claimant-respondent No. 2, she was dependent on the income of her son, deceased Umesh. Merely because there was no divorce between the respondent Nos. 1 and 2, is not a ground to disentitle the respondent No. 2 from claiming compensation. She has deposed before the court that she is residing separately from her husband since last three to four years. So also it may not be possible for claimant-respondent No. 2, to produce documentary proof to establish contract of employment. In view of peculiar family relationship, as rightly held by the co-ordinate Bench of this Court in case of Oriental Insurance Co. Ltd. v. Hanumant , merely because respondent No. 1 and the deceased were father and son, is not a ground in law to infer absence of relationship of employer and employee under the Workmen's Compensation Act. Therefore, the Commissioner has rightly held that there exists the relationship of employer and employee between the deceased and the respondent No. 1.
11. It is also seen that the policy covers the risk of the driver. When the appellant has collected the premium to cover the risk of the driver, the appellant cannot contend that it is not liable to indemnify the owner.
12. As far as the quantum of compensation is concerned, the Commissioner has rightly taken the income of the deceased as Rs. 2,500 per month and considering his age as 23 years, he has taken the relevant factor to quantify the compensation.
13. Therefore, I do not find any good reasons to interfere with the award passed by the Commissioner. Hence, the appeal fails and is accordingly dismissed.