C.M. Nayar, J.
1. The present appeal is directed against the order dated Oct. 4, 1990, of Commissioner for Workmen's Compensation, Delhi, wherein the respondent Shri Goverdhan Dass, who is now represented by his legal representatives, was awarded compensation for the amount of Rs. 33600/- and imposition of penalty amount of Rs. 10,000/- and interest at the rate of 6 per cent per annum on the compensation amount from the date of the accident, till the dale of actual recovery. The learned Commissioner noticed that the appellant Umesh Saxena in his statement on oath had already admitted that the respondent Goverdhan Dass used to drive the car to take him to his office from his house and vise versa. He has also admitted that the respondent used to drive car to outstation, as well as, for the performance of his official duties, as manager of M/s. Milk Food Ltd. The averment of the appellant, Mr. Umesh Saxena that respondent Shri Goverdhan Dass, was employed by him in his personal capacity and that he himself was the owner of the vehicle, was not believed by the Commissioner on appreciation of evidence on record. The Commissioner further concluded that if the respondent driver was not an employee of M/s. Milk Food Ltd. and was employed by Shri Umesh Saxena, only in his personal capacity as his driver to drive his car No. PJP 414, then it was his bounden duty to rebut the allegations of the respondent by producing oral and documentary evidence and such other documents, attendance and wage register, maintained by M/s. Milk Food Ltd. for its employees, so as to prove that the name of the respondent did not exist on the roll of the said company. This having not been done, an adverse presumption would, thereforee, be justified.
2. The learned Counsel, appearing for the respondents, has contended that the deceased Goverdhan Dass was employed by the company and the award in his favor, is in accordance with law. He has also submitted that the appellants were summoned as Manager and employees of the Company and the same is borne out from the summons, issued in this regard, which indicated that Shri Umesh Saxena was Manager of Milk Food Ltd. and the respondent Shri Goverdhan Dass was employed in the services of the said company. Reference is also made to the statement of the deceased Shri Goverdhan Dass, in which he has categorically staled that he was working with M/s. Milk Food Ltd. for the last 3 years on a monthly salary of Rs. 700/-, and his duty hours were from 7 a.m. in the morning to 8 or 9 p.m. in the evening. Reference may also be made to the following paragraph in the award of the Commissioner:
'On the other hand, the petitioner has claimed that he used to get wages, advance and imprest money from the company on voucher. He has also filed a photo copy of voucher No. 9993 dated 24.4.83 issued to him by Milk Food Ltd. and vide this receipt of the said M/s. Milk Food Ltd. has acknowledged receipt of Rs. 100/- towards 'receipt of advance', which has duly been exhibited as MW1/1 and has duly been admitted by respondent No. 1 Mr. Umesh Saxena in his cross-examination. Had there been no relationship of employer and employee between M/s. Milk Food Ltd. and the petitioner then the said M/s. Milk Food Ltd. would not have given him advance to be refunded by the said petitioner to the company M/s. Milk Food Ltd. Again the respondent has also not disclosed as to on what account the money was advanced to the petitioner and all these lead again to the logical conclusion that there was due relationship of employer and employee between M/s. Milk Food Ltd. through its Manager Mr. Saxena and the petitioner'.
3. The said averment that the respondent was employed by the Company, has been accepted by the Commissioner and it has been held that no doubt, the respondent had not adduced any corroboratory evidence, but the same is the case with the appellant Umesh Saxena, Manager of Milk Food Ltd., who apart from examining himself and his own wife Mrs. Asha Saxena produced no independent witness in support of the contentions nor had he produced any employee of the Milk Food Ltd. in this regard. The said Mr. Umesh Saxena was manager of Milk Food Ltd. and there existed relationship of employer and employee between the said Mr. Umesh Saxena, Manager of Milk Food Ltd. and also M/s. Milk Food Limited, through its manager and the respondent herein.
4. The next question, which arose for consideration was, whether the accident had arisen out of and in the course of employment with the appellants. It was averred that when the respondent had complained of his suffering from headache and high fever, he was given tablets of medicines by Mrs. Saxena out of which he only consumed one tablet and he was made to drive the car for her and so also for Mr. Saxena, throughout the day, which had seriously affected his health and he started vomitting and also having blurred vision and it was only then he was allowed to go home in a three wheeler.
5. The averment that the respondent Goverdhan Pass had come for duty after consuming heavy drink was not believed and it was held that the same had been introduced as an afterthought only to defeat the claim of the respondent and it was held accordingly. Although, it was held by the Commissioner that the respondent failed to prove that he became blind on account of consumption of the tablet, given to him by Mr. Saxena, the statements of the petitioner Mr. Umesh Saxena, as well as, his wife were, however, not believed with regard to the consumption of liquor by the respondents Goverdhan Dass and the same was rejected by the Commissioner. The respondent was held to have reached the place of duty and had also been performing his duty throughout the day and thus his case was covered that the accident had arisen out of and in the course of employment.
6. The learned Counsel, appearing for the appellants, has contended that M/s. Milk Food Ltd. is a necessary party and it has not been established on record that the deceased Goverdhan Dass was employed by the said Company and he was, thereforee, not entitled to any relief under the Workmen's Compensation Act.
7. The learned Commissioner considered all aspects of the matter and came to the conclusion that there was a relationship of employer and employee between M/ s. Milk Food Ltd. and the respondent as the respondent was paid his wages, advances and imprest money on the voucher. There is also no infirmity in the finding of the Commissioner that the respondent had not only reached the place of duty but has also been performing his duty throughout the day and thus his case was very well covered that the accident had arisen out of and in the course of employment. The argument, which is now sought to be made that there could not be any award against the company M/s. Milk Food Limited, as it has not been imp leaded as a party to the proceedings, is an after thought. The service of summons on the appellants was for and on behalf of the company and there is no illegality in the finding that the deceased Goverdhan Dass was employed by the Company and the accident arose in the course of his employment. The Judgment as reported in The Employers in relation to Punjab National Bank v. Ghulam Dastagir: : (1978)ILLJ312SC cited by learned Counsel for the petitioner, has no application to the facts of the present case, as that case related to the personal driver of Area Manager of a nationalised bank and, thereforee, the said employee was held not to be an employee of the bank.
8. There is, thereforee, no force in this appeal and same is dismissed accordingly. Respondent Shri Goverdhan Dass died during the pendency of this appeal and the amount of compensation shall be disbursed to his legal heirs, in accordance with law.
9. Respondents shall also be entitled to costs, which are quantified at Rs. 2,000/-.