1 fa62-04J IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 62 OF 2004 1. Smt. Durgadevi R. Gupta ] Aged : 39 years – mother ] 2. Miss Sunita R. Gupta ] Aged – 14 years – Sister ] 3. Miss Anita R. Gupta ] Aged – 10 years – sister ] All R/at. R. No.15, Janak Compound, ] .. Appellants Hussaien Tekdi, Sai Baba, ] Khar, Mumbai – 51. ] V/s. 1. Radheshyam Shobnath ] C/o. Kumar V. Naidu, ] Bldg. No.155, R. No.14, ] Rly. Quarters, J. P. Road, ] Khar (E), Mumbai – 51. ] 2. The Oriental Insurance Co. Ltd. ] RO II, Oriental House, ] .. Respondents J. Tata Road, Churchgate, ] Mumbai – 20. ] Mr. A. M. Gokhale h/f. Mr. M. B. Kotak for the Appellants. Mr. H. G. Misar i/b. Mr. S. G. Deshpande for respondent No.2. CORAM : A.S.OKA, J. DATE : JUNE 8, 2011. ORAL JUDGMENT:- Heard the learned counsel appearing for the appellants. This is 2 fa62-04J an Appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as “the said Act”). It is well settled as provided in Section 30 of the said Act, that an Appeal is not maintainable unless a substantial question of law is involved in the Appeal. 2. The Appellants are the applicants in a claim application filed under Section 22 of the said Act. One Raju who was allegedly employed as a driver by the first respondent met with an accident on 17 th October, 2002 while driving a tempo of the first respondent. He died in the accident. The first respondent is the father of deceased Raju. The first appellant is the mother of the deceased Raju and the second and third appellants are the sisters of deceased Raju. The case made out in the claim application is that the first respondent had employed deceased Raju as a driver on monthly salary of Rs.4,500/-. The second respondent is the insurer of the vehicle. The claim petition was dismissed by the impugned order by holding that the appellant failed to establish that deceased Raju was an employee of the first respondent and that there was an employee-employer relationship between the said deceased Raju and the first respondent. 3. The learned counsel appearing for the appellants submitted that the law laid down by various High Court is that there is nothing illegal if father employees his own son and pays him salary. His submission is that the finding recorded on the existence of relationship is perverse 3 fa62-04J and, therefore, the substantial question of law arises. He has placed reliance on decision of this Court in the case of Bakulabai Vithoba Palampalle v/s. Rajanbai Prabhodchandra Murchala & Ors. 1991 ACJ 552. He submitted that there was never any dispute about the fact that the deceased Raju was employed by the first respondent and, therefore, Commissioner has committed an error by rejecting the claim. 4. I have considered the submissions. There cannot be any dispute that there is no illegality in a father employing his son. The question is whether the employment is proved on evidence. A compilation placed on record contains copies of pleadings and the depositions. The first appellant stepped into the witness box. She stated that her son Raju was employed by her husband as a driver of a tempo on monthly wages of Rs.4,500/- and the accident occurred during the course of his employment. In the cross examination, she admitted that she does not possess any documentary evidence to prove employment of the deceased and to prove the payment of wages to the deceased. She admitted that the first respondent (her husband) was carrying on business of selling vegetables which were brought from Nashik. It is stated that the first respondent use to bring the vegetables by his own tempo and sell it in Nirmal Nagar area. She stated that the respondent No.1 earns approximately a sum of around Rs.3,500/- per month. She stated that the tempo of the first respondent was also used for bringing the vegetables of the other parties. She, however, stated that she is 4 fa62-04J unable to tell the income of the first respondent on that count. 4. The first respondent also stepped into the witness box to depose that his son Raju was working with him as a driver on monthly wages of Rs.4,500/-. The first respondent admitted that he was not possessing any documentary evidence to show the payment of wages to his son. It is pertinent to note that the first respondent has not stated from date or month the son was employed by him. No particulars of the employment have been set out. There is no proof of payment of salary to the deceased Raju except purported salary certificate. The first respondent did not produce the account books. It must be noted here that though first appellate come out with the case that deceased was earning Rs.3,500/- per month from vegetable business, she has not stated that the said amount was the net income of the first respondent. Though she claimed that the first respondent was earning additional amount by transporting vegetables by his tempo, she did not disclose the amount received by the said respondent on the said count. 5. After considering all the aforesaid factual aspects, the learned Commissioner disbelieved the case of the appellants that deceased Raju was an employee of the first respondent. There is no reason to interfere with the findings of fact recorded by the learned Commissioner on the basis of appreciation of oral and documentary evidence on record. The findings cannot be said to be perverse. Hence, there is no 5 fa62-04J merit in the Appeal and the same is accordingly dismissed with no order as to costs. JUDGE