IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O No.321 of 2007 AND Cross Objection No.2940/2005 United India Insurance Company Ltd. .….. Appellant Versus Smt. Ujala Devi and another ……. Respondents Hon’ble Tarun Agarwala, A.C.J. Heard Sri K. K. Shah, the learned counsel for the appellant and Sri Vipul Painuly, the learned counsel for the opposite parties. 2. This is an appeal filed under Section 30 of the Workmen’s Compensation Act, 1923 arising out of an award of the Commissioner, Workmen’s Compensation, Tehri Garhwal dated 21st December, 2004 whereby a sum of Rs.2,19,950/- was awarded to the claimant/Smt. Ujala Devi as compensation. 3. The brief facts leading to the filing of the appeal is, that the deceased was a driver of a truck owned by opposite party no.2 and, while going from Srinagar, the truck collided with a bridge at village Juyalgarh which resulted in the death of the driver. The mother of the deceased - opposite party no.1 filed a claim application under Section 4 read with Section 10 of the Workmen’s Compensation Act, 1923 alleging that the deceased was working as a driver and was employed by the opposite party no.2 and that the death occurred arising out of and in the course of his employment. The claimant contended that the deceased was 23 years old and was earning Rs.4000/- per month at the time of the accident and that a first information report was also lodged and that the claimant was entitled for a sum of Rs. 6 Lakhs as compensation alongwith 18% interest. 4. The opposite party no.2, namely, the owner of the truck filed his written statement admitting the contents of the claim application and contending that an accident had taken place which resulted in the death of the deceased and that the vehicle was insured and, therefore, the compensation, if any, was liable to be paid by the Insurance Company. 5. The appellant, namely, the Insurance Company also filed the written statement and took the usual grounds by making a bald denial of all the averments claimed in the claim application contending that the deceased did not have a valid driving licence at the time of the accident and that no notice under sub-clause (1) of Section 10 of the Workmen’s Compensation Act was ever served upon them and that there was no relationship of a workman-employer between the deceased and the owner of the truck and that the terms and conditions of the policy was violated with impunity and, therefore, the Insurance Company was not liable to pay any compensation. 6. In evidence, it came out that the deceased was the son of the owner of truck and of the claimant and that the Insurance Company took a stand that there appears to be a collusion between the owner and the claimant and that a fraud was being played by them upon the Insurance Company. It was alleged that this relationship of the owner of the truck with the deceased and the relationship of the claimant with the owner of the truck were deliberately concealed and it was contended that since it was a family business there was no master and servant relationship between the deceased and the owner of the truck. 7. The Workmen’s Compensation Commissioner, after considering the material evidence on record, held that the claimant, being the mother of the deceased, had a right to file the claim application for compensation. The Commissioner also found that there was no collusion between the claimant and the owner of the truck in as much as the claimant was living separately from her husband and that the burden to prove the collusion was upon the Insurance Company, which they have failed to prove. The Commissioner also found that the owner had given a categorical statement that the deceased was working as a driver and that only a bald denial was made by the Insurance Company. The Commissioner also found that the deceased was having a valid driving licence at the time of the accident and, after considering all aspects of the matter, the Commissioner held that the Insurance Company was liable to pay a sum of Rs.2,19,950/- as compensation to the claimant. 8. Aggrieved by the aforesaid award of the Commissioner Workmen’s Compensation, the appellant, namely, the Insurance Company has filed the present appeal. 9. The learned counsel for the appellant submitted that in view of the evidence brought on record it was clear that the claimant had concealed her relationship with the owner of the truck by which it could safely be concluded that there was a collusion between the claimant and the owner of the truck in order to defraud the Insurance Company by filing a claim under the Workmen’s Compensation Act which was not payable in view of the fact that there was no master-servant relationship between the deceased and the owner of the truck since the deceased was the son of the owner and that it was wholly improbable for the father to employ his son on a salary as a driver. The learned counsel for the appellant submitted that it appears that a family business was going on, which resulted in the death of the deceased and, in this scenario, the Workmen’s Compensation Act was not applicable and that the Insurance Company was not liable to pay any compensation. The learned counsel for the appellant further submitted that no documentary evidence was brought on record to prove the employer-employee relationship nor any wage-slip was filed in support of his contention. The learned counsel for the appellant placed reliance upon a decision of the Hon’ble Supreme Court in the case of Gottumukkala Appala Narasimha Raju and others Vs. National Insurance Co. Ltd. & another 2007 (2) T.A.C. 385, wherein the Hon’ble Supreme Court held that the contract of employment having not been established, the insurance company was not liable to pay compensation under the Workmen’s Compensation Act. 10. On the other hand, the learned counsel for the claimant submitted that the award of the Commissioner does not require any interference since it was based on findings of fact, which cannot be interfered in an appeal under section 30 of the Act. The learned counsel for the claimant further submitted that the alleged collusion between the claimant and the owner of the truck was not proved nor any evidence was brought on record to prove that a fraud was played upon the insurance company. The learned counsel for the claimant further submitted that the claimant has also filed a cross objection for enhancement of the claim since the Commissioner had arbitrarily fixed the salary of the deceased @ Rs.2,000/- per month when in fact the salary of the deceased was Rs.4,000/- per month, and therefore, submitted that the compensation should be enhanced. 11. Having heard the learned counsel for the parties at some length, the Court finds that the appeal of the appellant is liable to be dismissed. The proviso to Section 30 of the Workmen’s Compensation Act clearly stipulates that an appeal would lie against an order only if a substantial question of law was involved in the appeal. In the present case, the Commissioner, upon sifting of the evidence, concluded that there was an employer employee relationship between the owner of the truck and the deceased respectively and that the claim application was subsequently maintainable under the Workmen’s Compensation Act. The Commissioner further found that the claimant was residing separately and was not living with the owner of the truck and that there was no collusion between the claimant and the owner of the truck to defraud the insurance company. These findings of the Commissioner are based on appreciation of evidence and are based on findings of fact, which cannot be interfered in an appeal. Nothing has been brought on record to suggest that the findings given by the Commissioner were perverse or against the material evidence on record. In the absence of the assertion of this kind, the Court cannot upset these findings on the mere probability or on a presumption that a fraud could have been played by the claimant with the collusion of the owner of the truck. 12. In view of the aforesaid, this Court is of the view that the award of the Commissioner does not require any interference. 13. In so far as the cross objection of the respondents is concerned, the Commissioner found that no evidence was filed by the claimant or by the owner of the truck to prove that the deceased was being paid Rs.4000/- per month. The Commissioner also found that the Insurance Company also made a bald denial on the question of payment being made to the deceased. The Commissioner after considering the material evidence, which was brought on record, safely concluded that the deceased was being paid Rs.2,000/- per month and this finding is based on appreciation of evidence which does not require any interference. 14. In view of the aforesaid, the appeal as well as the cross objection of the respondents fails and are dismissed. In the circumstances of the case, shall be no order as to cost. (Tarun Agarwala, ACJ) Dated 12-10-2009 Bhaskar/LSR