ORIENTAL INSURANCE CO LTD Vs. HANUMANT

JUDGEMENT

(1.) THE insurer is in appeal. The respondent No. 1 is the injured-claimant and son of the respondent No. 2. The respondent No. 2 is the owner of mahendra jeep. In the motor vehicle accident occurred on 8. 7. 1999, respondent No. 1 sustained simple injuries. The disability certificate at Exh. P-7 dated 7. 8. 2001 shows that injuries have resulted in restricted and painful movement of knee. The doctor has assessed disability at 5 to 10 per cent. The Workmen's Compensation commissioner has assessed the disability at 15 per cent. It was the contention before the Workmen's Compensation Commissioner that respondent No. 1 was employed in the jeep by respondent No. 2. In view of the father and son relationship, it is argued by the insurer that there exists no relationship of employer and employee to entertain the claim under Workmen's Compensation Act, Commissioner, Workmen's compensation overruled the objection and granted compensation of Rs. 39,324 assessing disability at 15 per cent and taking the wages as Rs. 2,000-60 per cent of rs. 2,000 as the wages and 218. 47 the statutory factor. The following questions arise for consideration in this appeal: (i) When respondent No. 1 and respondent No. 2 are father and son, whether the legal relationship of employer and employee could exist in law under the workmen's Compensation Act ? (ii) Whether the assessment of partial permanent disability by the Workmen's compensation Commissioner is contrary to law and evidence on record?

(2.) THE contention of the insurer that there exists no relationship of employer and employee since the respondent No. 1 (driver) happens to be the son of the owner of the jeep, respondent No. 2, therefore, there cannot be a relationship of employer and employee is an untenable argument. 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. Therefore, the fact that the respondent No. 1 and respondent No. 2 are father and son, is not a ground in law to infer the absence of the relationship of employer and employee under Workmen's Compensation act.

(3.) THE findings of the Workmen's Compensation Commissioner that the injured has suffered 15 per cent disability is contrary to law and evidence on record. Exh. P-6 the wound certificate issued immediately after the accident shows that only two simple injuries and no evidence of fracture. The disability certificate issued at Exh. P-7 dated 7. 8. 2001 shows that restricted movements of the right knee and disability assessed at 5 to 10 per cent. The disability certificate does not appear to have any nexus with Exh. P-6. When there is no fracture of knee, the symptom of painful movements almost two years after the accident cannot be related to injuries at exh. P-6. The simple injuries at Exh. P-6 get healed in couple of days and cannot result in any partial permanent disability. The disability, if any, is partial temporary disability lasting for a day or two. The disability noticed, if any, at Exh. P-7 even if it is true cannot be related with Exh. P-6. In that view, award of compensation by the Workmen's Compensation Commissioner is totally exaggerated and contrary to record. In the absence of any injuries resulting any kind of disability, the insurer cannot be fastened with liability.