HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.3390 OF 2003 JUDGMENT: Oriental Insurance Company Limited filed this appeal under Section 30 of the Workmen's Compensation Act aggrieved by the order dated 28-6-2003 in W.C.No.67 of 2002 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-III, Hyderabad. 2. The details necessary for deciding this appeal are that T.Gopal was driver of auto bearing No.AP-11V-6559 and on 15-10- 2002, when it reached the limits of Uppal village, a cyclist came on to the road suddenly and on seeing him, the auto driver applied sudden break and lost control over the auto and it turned turtle on the road and he sustained grievous injuries and multiple fractures all over the body and died later. Mother, wife and children of the deceased have filed the above W.C. claiming compensation of Rs.4,50,000/- from the owner and insurer of the auto involved in the accident. The Commissioner after considering the evidence on record, awarded compensation of Rs.2,63,469/- as against the owner and insurer of the auto. Aggrieved thereby, the insurer preferred this appeal challenging its liability on the ground that the deceased was not working as paid employee and the deceased does not come within the defintion of 'workman' under Workmen's Compensation Act. 3. Heard learned counsel for the appellant and learned counsel for the claimants and perused the record. Learned counsel for the appellant contended that the deceased was not a 'workman' and as such, insurance company is not liable to pay any compensation and that the accident had not occurred out of and in the course of employment. On the other hand, learned counsel for claimants contended that irrespective of the evidence, the said Act is a beneficial piece of legislation and it has to be construed in favour of the claimants who are dependent on the deceased. 4. The substantial questions that arise in this appeal are: a) Whether the impugned order is sustainable in view of the law that the compensation shall be awarded only to the 'workman' as defined under Workmen's Compensation Act? b) Whether the accident occurred out of and in the course of employment when the deceased was not a paid workman/employee? 5. In order to appreciate the above questions, firstly it is necessary to look at the evidence to find out whether the deceased was paid wages for driving the auto. The evidence of RW-1, owner of the auto, is to the effect that he is the owner of auto and he gave the auto to the deceased on payment of rent of Rs.120/- per day and that the deceased took the auto for about three weeks on rent. His evidence is that he had not paid daily wages to the deceased and that he was not the employer and not paying wages to the deceased. Such being the evidence, it is to be considered whether the accident occurred in the course and out of the employment. The owner had given his auto on rent to be paid by the deceased at Rs.120/- per day and the owner had not engaged the deceased on daily basis to run the auto. In fact, the owner was not paying wages to the deceased to come within the ambit of the definition 'workman' under Workmen's Compensation Act and on the other hand, the deceased was paying rent at Rs.120/- per day for taking the auto on hire basis. It is pertinent to refer to the definition of 'workman' as per Section 2(n) of the Workmen's Compensation Act, which reads as under: 'Workman' means any person who is: i) a railway servant as defined in Section 2(34) of the Indian Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ia)(a) a master, seaman or other member of the crew of a ship. b) a captain or other member of the crew of an aircraft, c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, d) a person recruited for work abroad by a company and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or (ii) employed in any such capacity as is specifiedin Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing, but does not include any person working in the capacity ofa member of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependants or any of them." 6. A reading of the above definition clearly shows that there must be relationship of employer and workman and only then, the deceased can be called a 'workman'. In the instant case, the deceased had taken the auto on rental basis and plying the auto and in turn,the deceased was paying rent at Rs.120/- per day. In case the deceased was employed by the owner, the owner would have paid daily wage to him. Having regard to the facts and circumstances, I am of the considered view that there is no relationship of employer and workman between the owner and deceased and that the deceased does not fall within the definition of a 'workman' under Workmen's Compensation Act. Therefore, the insurance company is not liable to pay compensation when no such relationship exists. 7. In the result, the appeal is allowed and the insurance company is exonerated of its liability to pay the compensation. At this stage, it is represented that one-third of the compensation deposited has already been withdrawn by the claimants. It is open to the insurance company to recover the said amount from the owner of the auto. ____________________________ GHULAM MOHAMMED, J. 15-7-2010 bsc