Rajesh Tandon, J.
1. Heard Sri Rajendra Dobhal Counsel for the appellant and Sri Naresh Pant Counsel for the respondent No. 2.
Present appeal has been preferred against the judgment and award dated 21.12.1994 passed by the Commissioner, Workmen's Compensation, Pithoragarh.
2. Claimant appellants filed a claim petition under Workmen Compensation Act, for the grant of compensation on account of the death of her husband late Hemant Singh in an accident. According to the claimant No. 1 her husband was employed as driver in Maruti Van No. UP 03/0057. On 12.3.1993 the vehicle met with accident and rolled into the khadd between Tejam and Kweeti. Sri Hemant sustained fatal injuries in the accident and he died at the spot. The claimant demanded a sum of Rs. 83,968/- as compensation.
3. Respondent No. 1 in its written statement has submitted that the deceased was employed as a driver in Maruti van Taxi No. UP 03/0057. The salary, of the deceased was Rs. 1,600/- per month. Respondent No. 1 has admitted the factum of accident. The vehicle was validly insured with the United India Insurance Company and the insurer is liable to pay compensation to the claimants.
4. On the pleadings of the parties the following issues were framed:
1. Whether the deceased Hemant Singh was employed as a driver on 12.3.1993 on the Maruti van No. UP 03/0057 of respondent No. 1 Habil Singh and died due to accident during his employment?
2. What was the wages of the deceased and what was his age?
3. Whether the vehicle No. UP 03/0057 was insured with the United India Insurance Company at the time of accident and all the papers of the vehicle were valid?
4. What amount of compensation are the claimants entitled and from which of the respondents?
5. The Workmen's Compensation Commissioner after considering the evidence on record has held that deceased Hemant Singh was the son of respondent No. 1 Habil D. Singh and the claimants have failed to prove that deceased was employed as a driver by respondent No. 1. As there was no relationship of employee and employer between the deceased and respondent No. 1, the claimants are not entitled to get compensation under the Workmen's Compensation Act. Accordingly, the Commissioner has dismissed the claim petition.
6. Feeling aggrieved the present appeal has been filed by the claimants. Counsel for the appellants has submitted that the Workmen Compensation Commissioner has erred in by holding that at the time of accident the deceased was not performing his duty and he was not employed with the respondent No. 1. The respondent No. 1 has admitted that the deceased was employed by him as a driver and he was giving him Rs. 1,600/- per month as salary.
7. Before dealing with the first submission the relevant provision of Section 3 of the Workmen's Compensation Act, as referred by the Counsel is quoted below:
3. Employer's liability for compensation.-
(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable-
(a) In respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding 1 [three] days;
(b) In respect of any 2[injury/ not resulting in death 3[or permanent total disablement] cause by] an accident which is directly attributable to-
(i) The workman having been at the time thereof under the influence of drink or drugs, or
(ii) The wilful disobedience of the workman to an order expressly given, or to a rule expressly trained, for the purpose of securing the safety of workmen, or
(iii) The wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman, 4 [***]
The Counsel for the appellant has vehemently argued that the death of the deceased was arising out of the employment of the deceased and it was caused during his duty.
8. As against this the Counsel for respondent No. 2 Insurance Company has submitted that deceased and owner of the vehicle were son and father, the Question of there being a relationship of employer and employee between them did not arise and in that view of the matter, the deceased was not a 'Workman' within the meaning of the provisions of Section 2 (n) of the Workmen's Compensation Act.
Section 2 (n) of the Workmen's Compensation Act reads as under:
2(1) (n) 'workman' means any person who is:
(i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890 (9 of 1890), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II,
(ia) (a) *** ***
(b) *** ***
(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
(d) ***
and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or;
(ii) employed in any such capacity as is specified in Schedule II.,
A driver employed for driving taxi is a 'workman' and is entitled to claim 'compensation for personal injury and his legal heirs in case of death also claim compensation.
9. Here in this case it is admitted to the claimants as well as respondent No. 2 that the deceased driver was the son of the respondent No. 2. In order to prove the relationship of employer and empldyee the appellants have filed the copy of the affidavit of the employer, who used to treat the deceased as driver. The contents of the affidavit are quoted below:
Affidavit
I Habil D. Singh aged 58 years son of late Mr. Kikar Singh resident of Mission compound, Bhatkot, Pithoragarh, P.O. & District Pithoragarh U.P. do hereby solemnly affirm and taken on oath as under:
1. That the Omni Taxi, allotted to me, will be run by my Driver Mr. Hemant Kumar Singh, son of Mr. Habil D. Singh, residing at present Mission Compound, Bhatkot, Pithoragarh, P.O. & District Pithoragarh, U.P. whose driving licence I have already submitted with the documents.
2. That the Taxi purchased by me, will be registered only as taxi.
3. That the Taxi will not be sold or converted as private car within the period of three years.
10. On the other hand Counsel for the Insurance Company has relied upon the case Gottumukkala Appala Narsunha Raju and Ors. v. National Insurance Company and Anr. 2007 (2) TAG 385 (SC) where the Apex Court has held that husband would not be a workman of his wife in the absence of specific contract, The Apex Court has observed as under:
In our considered opinion, it is wholly absurd to suggest that the husband would be a 'workman' of his wife in absence of any specific contract. We have no doubt in our mind that for the purpose of proceeding under the 1923 Act, only the appellants have concocted the story of husband and wife living separately. If they have been living separately in view of certain disputes, the question of husband being a 'workman' under her appears to be a far-fetched one.
11. In the present case the workman (driver) is the son of the owner of the vehicle and as such there may be some specific oral contract between the employer and employee. The case is, therefore, remanded to the Court below for deciding it afresh after giving specific findings on the point of relationship of employee and employer on the basis of evidence on record.
12. However, it will be open for the claimant to avail alternative remedy to claim compensation under the Motor Vehicle Act, as the driver of a public vehicle is entitled to compensation under the Motor Vehicles Act.
Consequently, the appeal is allowed.
No order as to costs.