(Prayer: Civil Miscellaneous Appeal filed under Section 30 of Workmens Compensation Act, against the order dated 04.04.2008 passed by the Deputy Commissioner of Labour-1 at Chennai in W.C.No.244 of 2005.)

1. The applicants stated in their application that the deceased Nagarajan was engaged as a car driver under the employment of the 1st opposite party and was paid a sum of Rs.4,500/- as monthly salary. On 01.12.2004, at about 10.30 p.m., when the deceased was proceeding to Kalahasti, in a car bearing Registration No.TN-07-AA-1879, the car was involved in an accident with a Transport Corporation Bus bearing Registration No.TN-21-N-0529, on the G.S.T. Road. As a result, the driver of the car had sustained injuries and succumbed to it. The said car was insured with the 2nd opposite party herein. Therefore, the claim has been filed by the applicants against the 1st and 2nd opposite parties.

2. The 1st opposite party had filed counter statement and resisted the application. The 1st opposite party submitted that the deceased Nagaraj was not employed by her but is only known to her. The 1st opposite party submitted that the deceased Nagaraj had informed her that his father was not well and took the car in order to go to see his father, as such, he used the car for his personal use. It was further stated that in the F.I.R. itself, it was mentioned that one Ms.Padma, a group dancer was proceeding to Kalahasti for a dharshan, along with her friends. As such, the Car was proceeding along with occupants for their personal use. The said car was never hired or rented. The 1st opposite party further submitted that there was no relationship between the deceased and herself as employee and employer. Further, the deceased was not engaged on a regular basis as employee. The said car bearing Registration No.TN-07-AA-1879 was insured with the 2nd opposite party.

3. The 2nd opposite party had filed counter statement and refuted the compensation petition. The 2nd opposite party submitted that the deceased Nagaraj was never employed by the 1st opposite party. As per the F.I.R., the said Car was not engaged on hire purpose and the deceased was not engaged as driver for the said car. Actually, one Padma and her friends had travelled in the said car and as such the car was used for personal use.

4. On the averments of all the parties, the Deputy Commissioner of Labour-1 had framed three issues namely: (1) Whether the deceased Nagaraj is a Workman as defined under the Workmens Compensation Act (2) If so, whether the applicants are entitled to get Workmens Compensation as dependents of the deceased Nagaraj and (3) If so, who is liable to pay the compensation amount

5. On the side of the applicants, three witnesses were examined and 8 documents were marked as Exhibits P1 to P8 namely: Ex.P1-Driving licence of deceased; Ex.P2-Accident and injuries report of police; Ex.P3-F.I.R.; Ex.P4-Death report; Ex.P5-Postmortem Certificate; Ex.P6-Death Certificate; Ex.P7-Copy of R.C.Book; and Ex.P8-Insurance policy. On the side of the 2nd opposite party, no one was examined and no document was marked.

6. PW1, wife of the deceased had adduced evidence that her husband Nagaraj was working as a driver with the 1st opposite party and while so, on 01.12.2004, her (deceased) husband had informed her that he was going to Kalahasti, as driver of the car belonging to the 1st opposite party and she was informed that her husband met with an accident and admitted in the Government Hospital, Stanley, Chennai, wherein he had expired in spite of medical treatment. PW1 further adduced evidence that her husband was paid a sum of Rs.4,500/- as monthly salary, besides Rs.100/- per day as batta. PW1 further stated that the 2nd and 3rd applicants are daughter and son of the deceased Nagaraj and the 4th applicant was the mother of the deceased.

7. PW2, the 1st opposite party had adduced evidence that she was the owner of the Tata Indica car bearing Registration No.TN-07-AA-1879 and the deceased Nagaraj had never been her regular driver and she used to call him occasionally, to drive her car, as and when required. On 01.12.2004, the deceased Nagaraj took the car for his personal purpose to see his ailing father and the car met with an accident. She also deposed that she was never informed by the deceased Nagaraj that he was going to Kalahasti. She deposed that on telephoning his house, she was informed that the car had met with an accident.

8. In her cross examination, she had stated that she used to send out her cars to companies, on their request and the deceased Nagaraj and Sridhar would be driving her cars, so rented out to companies. The said car was insured with the 2nd opposite party.

9. On recording the evidence of the witnesses and on scrutinising the documents marked by the applicants, the learned Deputy Commissioner of Labour-1, directed the 1st opposite party to pay compensation of a sum of Rs.3,92,265/- to the applicants, stating that the deceased had used the said car for his personal use and as such, the Insurance Company has no legal obligation to indemnity the owner of the car for any liability arising out of the accident.

10. Aggrieved by the said award, the 1st opposite party has filed the above appeal. The highly competent counsel for the 1st opposite party argued that the deceased had taken the car for his personal use in order to see his ailing father. The said car had been insured with the 2nd opposite party. Further, the deceased had never been engaged as an employee under the 1st opposite party. Therefore, the findings against the 1st opposite party is not sustainable under law. Further, the deceased and his friends namely, Padma, a group dancer, along with others, went to Kalahasti and met with an accident. Therefore, in the instant case, the employer-employee relationship does not arise.

11. The very competent counsel for the Insurance Company vehemently argued that the 1st opposite party had not produced any documentary evidence regarding employment, salary particulars of the deceased. Further, the 1st opposite party had categorically admitted that the deceased had never been engaged with her as an employee. Therefore, the compensation petition is not maintainable against the Insurance Company.

12. The highly competent counsel for the applicants submits that the deceased was engaged as a driver for the 1st opposite party and she is running car-rental business and she has let out cars to companies and the deceased Nagaraj was also one of the drivers working under the 1st opposite party on regular basis. In order to avoid payment of compensation, the 1st opposite party had not given crystal clear statements before the Deputy Commissioner of Labour-1 and had not produced substantial documents regarding employment of deceased. At the time of accident, the occupants had engaged the car on rental basis. Further, the said car had been insured with the Insurance Company and the copy of the Insurance Policy was marked. Therefore, the employer-employee relationship had been proved and it was also proved that the deceased had died due to injuries arising out of and while doing his duty as a driver in the car under the employment of the 1st opposite party.

13. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Deputy Commissioner of Labour-1, this Court is of the view that as per the evidence of the 1st opposite party, she is letting out car to companies on rental basis and it is seen that the deceased was employed as driver under the 1st opposite party and it is also seen that the driver was possessing valid driving licence, while he was driving the car, along with some occupants. Further, the said car has been insured with the 2nd opposite party. The 2nd opposite party had filed counter statement to establish their statements, no oral or documentary evidence had been marked. Therefore, this Court is of the view that the deceased was an employee under the 1st opposite party and the accident had arisen out of and while doing his duty under the course of employment. Hence, this Court directs the 2nd respondent herein / Bajaj Alliance General Insurance Company to deposit the compensation amount of a sum of Rs.3,92,265/-, along with accrued interest, within a period of 4 weeks from the date of receipt of this order, into the credit of W.C.No.244 of 2005, on the file of Deputy Commissioner of Labour-1, Chennai. After such deposit having been made, the applicants are permitted to withdraw a sum of Rs.2,92,265/- as per the ratio fixed by the Deputy Commissioner of Labour-1, Chennai, taking into account the sum of Rs.1,00,000/- withdrawn by the claimants, as per this Courts earlier order dated 29.07.2009.

14. After such deposit being made by the 2nd opposite party, the 1st opposite party is at liberty to withdraw the compensation amount, deposited by her, lying in the credit of W.C.No.244 of 2005, on the file of Deputy Commissioner of Labour-1, Chennai. This Court directs the Deputy Commissioner of Labour-1, Chennai to disburse the compensation amount, as mentioned above, after the applicants file a memo, along with a copy of this order and after identification of the applicants by their counsel.

15. In the result, the above appeal is allowed. Consequently, the award passed in W.C.No.244 of 2005, on the file of Deputy Commissioner of Labour-1, Chennai, dated 04.04.2008, is modified. No costs. Consequently, connected miscellaneous petitions are closed.