ORIENTAL INSURANCE CO LTD Vs. P A DAVIS

JUDGEMENT

(1.) IS an insurer, who had issued a policy of insurance governed by Section 147 (1) of the Motor Vehicles Act, 1988, hereinafter referred to as the M. V. Act, liable to satisfy an award made under the Workmens compensation Act, 1923, for short, the W. C. Act, granting compensation to a workman for injuries sustained while driving a motor vehicle, though he was not employed, specifically, as a driver? This is the short issue, a substantial question of law, that arises for decision in this appeal by the insurer.

(2.) THE claim, before the Commissioner, was on the ground that the applicant was employed by his brother, the first opposite party in his business of selling fish and in the course of such employment, the applicant was injured while riding the motor cycle to Pariyaram from Chalakudy for selling fish. THE second opposite party, the insurer contested. THE commissioner framed issues, including as to whether the applicant was a workman as defined in the W. C. Act and whether there was an employer-employee relationship between the applicant and first opposite party and whether the accident arose out of and in the course of employment of the applicant. THE commissioner believed the version of the applicant as A. W. 2 regarding his employment and acted on the finding in Ext. M2 investigation of the insurer to hold that the applicant sustained injuries in the accident on 17-12-1998, that he is a workman as defined in section 2 (1) (n) of the W. C. Act and that he is entitled to compensation for the accident. THE Commissioner fixed the compensation, on the basis of the disability certificate and other relevant facts, having regard to the various parameters.

(3.) PER contra, the learned counsel for the first respondent applicant urged that the Commissioner has found on facts that the applicant has established an employer-employee relationship between him and the first opposite party and such finding of fact is not to be interfered with in an appeal under section 30 of the W. C. Act, which prescribes interference only on a substantial question of law. It is further urged that having regard to the manner in which the Division Bench has decided Nimmys case (supra), the aforesaid case, the distinction now drawn by the appellant does not survive.