NATIONAL INSURANCE CO Vs. NARAYANAN NAIR

JUDGEMENT

(1.) The insurer of a stage carriage, KLT 2319, appeals the decision of the Workmen's Compensation Commissioner in W.C.C. No. 66 of 1980. The son of the claimant was involved in an accident and died as a consequence of the injury sustained by him. He was aged 22 years as on 5-8-1978, when the accident occurred. He was an employee of the present second respondent, who was the owner of the stage carriage. While travelling in that vehicle as an employee, he fell out of the vehicle and was crushed under the left rear wheel, as a consequence of the swerving of the Vehicle to avoid hitting, a boy who suddenly crossed the road. In the application under S.22 of the Workmen's Compensation Act, the father of the deceased boy alleged that the deceased was an employee of the second respondent and he was receiving a monthly salary of Rs. 650/ and therefore the claimant was entitled to Rs. 50,000/ as compensation. The insurer resisted the claim on the ground that the deceased was only a casual employee, that the insurer was not liable to reimburse any amount payable by the insured in respect of his death, and that the accident did not occur due to any negligence on the part of the driver. The owner of the vehicle had also resisted the claim for compensation on substantially similar grounds.

(2.) The claimant was examined as AW2. He also examined Ext. AW-1. The respondents examined MWs. 1 and 2, the latter being the son of the owner. Exts. Al to A5 were marked on the side of the applicant, whereas Ext. M1 was marked by the insurer. The Tribunal found that the deceased was an employee of the owner of the stage carriage, that he sustained the injury out of and in the course of his employment, that the insurance policy covered the liability of the insured to compensate the claimant for the death of the employee and that the monthly wages of the deceased must to be taken to be Rs. 320/ In the absence of any direct evidence in this regard, the Commissioner adopted the rate of wages under the Minimum wages Notification applicable to employees of passenger transport industry as the average monthly wages of the deceased. On the assumption that he was drawing a salary of Rs. 300/ to Rs. 400/ the amount of compensation was fixed a Rs. 19,200/ applying Schedule IV of the Workmen's Compensation Act.

(3.) In this appeal, the insurer raises three points: Firstly, that the deceased was not an employee who was covered by S.95(1) proviso of the Motor Vehicle Act and therefore the insurer was not liable to compensate the insured; secondly, that the Workmen's Compensation Commissioner is not entitled to direct the insurer to pay compensation in a proceeding under the Workmen's Compensation Act in view S.14 of the Workman's Compensation Act; and, lastly that the finding on negligence is obligatory to fasten any liability on the insured by reason of a policy issued under the Motor Vehicles Act to reimburse the compensation payable by the insured.