Devan Ramachandran, J.

1. The HDFC ERGO General Insurance Company Limited ((hereinafter referred to as the Insurance Company for short), has filed this Appeal against the order of the Commissioner for Employees Compensation, Thiruvananthapuram, in ECC No. 311/2017, whereby it has awarded an amount of Rs. 2,95,612/- to the applicant, who is the 1st respondent herein, being the compensation payable for the injury sustained by him, while he was allegedly in employment of the 2nd respondent herein.

2. The appellant, through the learned Senior Counsel Sri. George Cherian, instructed by Smt. K.S. Santhi, began his submissions against the impugned order by saying that no evaluation had been done by the Commissioner in its proper perspective as to whether there was any employer-employee relationship between the 1st and 2nd respondents, particularly in the background of the conceded fact that they are son and father respectively.

3. The learned Senior Counsel, however, then conceded that on account of certain extenuating reasons, his client had remained ex parte before the Commissioner; but that when became aware of the Award, they filed an application to have the same set aside, which was also, however, dismissed. He says that his client, therefore, has no other option, but to challenge the impugned order, particularly because the claim of employer-employee relationship between the respondents had been allowed by the Commissioner merely on the strength of Ext. A5-copy of the charge sheet and Ext. A9-RC Book of the vehicle, which he says, cannot justify any such conclusion.

4. The learned Senior Counsel further went on to say that, as is evident from the impugned order, the Commissioner has dealt with the aforementioned issue in a very casual manner and has concluded that the respondents were in an employer-employee relationship and that the 1st respondent herein falls within the definition of workmen as per Section 2(1)(n) of the Workmens Compensation Act, without any evidence being let in for this purpose by any of the parties. He then continued his argument by saying that, going by the facts involved, it is clear that the vehicle, owned by the 2nd respondent-father, was used by the son-1st respondent and his friends, clearly indicating that it was used for domestic purposes and not for commercial use. He, therefore, prays that this Court allow this appeal on the substantial questions of law framed in the memorandum.

5. In response to the above, Sri. Rafeek V.K., learned counsel for the respondents, submits that the questions of law raised by the appellant are not substantial in its nature and therefore, that this Appeal is not maintainable. He says that, in any event of the matter, since the appellant-Insurance Company remained ex parte before the Commissioner and since they had not explained the delay in having approached the Commissioner with the application to aside the Award, none of the afore contentions may be considered by this Court. He thus prays that this Appeal be dismissed.

6. I have considered the afore submissions and have also examined the materials available on record.

7. I notice that the questions of law raised by the appellant for consideration of this Court are as under:

i) Has not the Commissioner went wrong in holding that there is employee employer relationship between the applicant and first opposite party who are son and father respectively

ii) Has not the Commissioner went wrong in holding that the alleged accident occurred during the course of employment and without taking into account the type of vehicle involved in the accident and the relationship between the applicant and first opposite party

iii) Has not the Commissioner went wrong in not setting aside the ex parte order, shutting out the entire evidence on behalf of the appellant

iv) Has not the Commissioner went wrong in accepting Ext. A7 certificate wherein loss of earning capacity is referred in relation to a particular employment.

8. When I examine the afore, it is without doubt that numbers (iii) and (iv) above cannot be considered to be substantial questions of law, since they are hinged on mere assessment of facts. However, as regards questions (i) and (ii), I am of the view that it requires consideration by this Court, because conclusions of the Commissioner with respect to the employer-employee relationship between the respondents certainly requires to be evaluated, especially because the respondents are admittedly son and father respectively and since no direct evidence has been brought on record to show that there was such a relationship between them.

9. From the order impugned, it is evident that the issue regarding the employer-employee relationship between the respondents was considered as issue No. 1 and decided as under:

Issue No. 1

The documents produced by applicant were marked as Ext. A1 to A11. The 1st opposite party admitted the employer-employee relationship in his written statement. The Ext. A5 is the copy of charge sheet and Ext. A9 is the RC Book substantiates the contentions of applicant and first opposite party. Both documents corroborates the version of the applicant that he was an employee under the first opposite party. Hence I hold that the employer-employee relationship was in force between the first opposite party and the applicant and he comes under the definition of workman within the meaning of Section 2(1)(n) of the workmens Compensation Act. Therefore, the first issue is found in the favour of the applicant.

10. It is ineluctable from the above, that the Commissioner has merely relied on Ext. A5-copy of the charge sheet and Ext. A9-Registration Certificate of the vehicle in question to hold automatically that the relationship between the respondents are established. I fail to understand how such a conclusion could have been arrived at by the Commissioner, even if the appellant-Insurance Company had remained ex parte, because the said relationship between the respondents ought to have been properly and reliably established through cogent materials. That said, Ext. A5 is the charge sheet with respect to the accident; while Ext. A9 is the Registration Certificate of the vehicle involved, which, by no stretch of imagination, can establish an employer-employee relationship between the parties. The fact that the Commissioner has relied upon these two documents alone to find such relationship between the respondents, particularly when they are conceded to be father and son respectively, compels this Court not to offer imprimatur to such conclusions.

11. That said, it is pertinent that Sri. Rafeek does not have a case that the relationship between the respondents has been proved by any other material, apart from their assertions in their testimony that there is such a relationship. He says that the charge sheet would clearly indicate that the vehicle was driven by the 1st respondent as an employee of the 2nd respondent and the RC Book would further establish that the vehicle is owned by the 2nd respondent. He asserts that a conjoined reading of these documents would establish beyond doubt that the parties are under an employer-employee relationship.

12. Even when I hear Sri. Rafeek on the afore lines, I am afraid that I cannot accept his afore submissions, because it is without requirement of further expatiation that the relationship of employer-employee between the respondents cannot be found or established in such a casual manner. As already stated above, this ought to have been established based on cogent and admissible evidence, which appears to be lacking in this case totally. I am, therefore, of the view that the matter requires to be re-considered by the Commissioner, however, only from the angle of this issue and not any other.

Consequently, I allow this appeal in part and set aside the findings in the impugned order as regards the employer-employee relationship between the respondents herein, but without interfering with the other findings and conclusions; consequently remanding the matter to the Court of the Commissioner for Employees Compensation for reconsideration of this issue, after affording necessary opportunity to the parties. It is thus needless to say that, if, consequent to the afore exercise, the relationship of employer-employee between the respondents is established, then the remaining part of the impugned Award, which is confirmed by me, will thereupon operate as per law.

The reconsideration as ordered above, shall be completed by the Commissioner, as expeditiously as is possible, but not later than three months from the date of receipt/production of a copy of this judgment.

For this purpose, I direct the parties to mark appearance before the Commissioner on 10.02.2020.

In the nature of the circumstances noticed herein, I deem it prudent not to impose any order as to costs; and consequently, direct the parties to suffer their respective costs.