J.C.S. Rawat, J.@mdashThis appeal u/s 30 of the Workmen''s Compensation Act, 1923 has been filed by the Insurer-United India Insurance Company Ltd. against the award dated 24-11-2003 passed by the Commissioner for Workmen''s Compensation, Dehradun in W.C.A. No. 6 of 2001, Smt. Ratan Kaur and Ors. v. Smt. Jagjeet Saini and Ors. whereby the learned Commissioner has awarded a sum of Rs. 2,23,576/- as compensation in favour of the claimants against the Appellant-United India Insurance Company Ltd.
2. Brief facts of the case are that Respondent No. 1 Smt. Ratan Kaur filed a Claim Petition before the Commissioner for Workmen Compensation claiming compensation of Rs. 1,78,490/- for the death of her son Harcharan Singh due to stress and strain while driving the Truck No. U.P. 07-B-5996 on 05-11-2000 during the course of his employment as Driver with Respondent No. 4 Smt. Jagjeet Saini, owner of the truck. It was further alleged that the deceased was 42 years of age at the time of the incident and was getting a sum of Rs. 2,000/- p.m. as salary from the employer.
3. The opposite parties filed their written statements and contested the claim petition. The Respondent No. 4-Jagjeet Saini, who claims herself to be the employer, had admitted all the averments made in the claim petition and pleaded that on the date of incident the truck was insured with the Appellant United India Insurance Company Ltd., therefore, the Appellant United India Insurance Company Ltd. is liable to pay the compensation. The Appellant, United India Insurance Company Ltd. in its written statement had denied all the allegations made in the claim petition due to lack of knowledge. It was further pleaded that the deceased was the husband of the owner of the truck and there was no master-servant or employer-employee relation between the owner and driver. It was further pleaded that the driver did not die during the course of employment. It was further pleaded that the deceased was driving the truck as owner, therefore, the claimants are not entitled to any compensation.
4. The Commissioner for Workmen Compensation framed necessary issues in the case and on the evidence led by the parties held that the deceased died during the course of his employment and the insurer of the Truck was liable to pay compensation to the claimant.
5. Assessing the income of the deceased at Rs. 2,639/- per month and taking into account that the deceased was aged about 45 years on the date of the incident, the Commissioner awarded Compensation of Rs. 2,23,576/-. The Commissioner further directed the insurer to pay the compensation within a period of one month from the date of award failing which the insurer had to pay the normal interest from the date of claim petition till actual payment.
6. Feeling aggrieved by the impugned award, the present appeal has been filed by the Appellant.
7. We have heard learned Counsel for the parties and perused the record.
8. Learned Counsel for the Appellant contended that the impugned award dated 24-11-2003 passed by the Commissioner for Workmen''s Compensation, Dehradun is contrary to the facts and evidence of the case on record. It was contended that the learned Commissioner had committed jurisdictional error by passing the impugned award. It was contended that the truck owner Smt. Jagjeet Saini, wife of the deceased had not filed claim petition but it was filed on behalf of the mother of the deceased Smt. Ratan Kaur and minor children of the deceased. Smt. Jagjeet Saini being the owner of the truck had been shown as the Respondent No. 1 in the claim petition (Respondent No. 4 in the A.O.). It was contended that the Smt. Jagjeet Saini wife of the deceased had totally concocted the story. It was contended that it could not be believed that a wife would employ her husband as a driver in her truck. It was contended that the learned Commissioner had erred in holding that there was a relationship of employer and employee between the deceased and his wife. It was contended that the death occurred due to heart attack while the deceased was on the truck. It was also contended that nothing has been brought on record by way of evidence that heart attack was caused due to some strain. It was further contended that the award is liable to be set aside. Learned Counsel for the Respondent Nos. 1 to 3 claimants had supported the judgment of the learned Commissioner.
9. Before dealing with the respective contentions of the parties, we would like to analyze the legal position in this behalf. Section 3(1) of Workmen''s Compensation Act, 1923 (hereinafter referred as Act) which is relevant for the purpose of this case reads as follows:
3. Employer''s liability for compensation - (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury not resulting in death, or permanent total disablement, caused by an accident which is directly attributable to-
(i) the workman having been at the time thereof under the influence of drink or drug, or
(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly frame, for the purpose of securing the safety of workmen, or
(iii) the willful removal or disregard by the workmen of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman.
10. Before granting the compensation to the workman, four conditions are to be fulfilled. These conditions are as follows:
(i) There must be personal injury to the workman;
(ii) Personal injury must have been occasioned by an accident;
(iii) Accident must have arisen out of and in course of employment; and
(iv) Injury must have resulted either in the death of the workman, or his total or partial disablement for a period exceeding three days.
11. The word ''accident'' used in Section 3 of the Act, speaking generally, means with reference to legal liabilities an unintended and unexpected occurrence which produces hurt or loss. It is often used to denote any unintended and unexpected loss or hurt apart from its cause and if the cause is not known the loss or hurt itself would certainly be called an accident. The majority of accidents are occasioned by carelessness and unexpected events. Thus with regard to the initial ingredients for such findings and the tests attracting the provision of Section 3 of the Act it has to be seen that there must a causal connection between the injury and the accident and the work done in the course of employment. Onus is upon the Applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed but the same would depend upon the evidence of each case. There must be a connection of employment with death. There must be positive evidence to prove this fact. In the instant case, the claimants had alleged in the claim petition that on 05-11-2000, the deceased was the driver in the truck No. UP 07-B-5996 and he was coming from Bareilly to Dehradun via Saharanpur and the deceased died near Basant Vihar Chowk while driving the vehicle. The claimants had further alleged in the petition that the deceased died due to strain of work by driving the vehicle for a long time. Smt. Ratan Kaur, mother of the deceased examined herself before the Commissioner as PW1 and she had not deposed in her evidence that the deceased met with his death due to strain. There was no evidence of this fact before the learned Commissioner. The claimant Smt. Ratan Kaur examined herself as PW1 and Ashok Kumar Chawla as PW2 but they were not present in the truck while the deceased suffered the heart attack. The owner of the truck Jagjeet Saini wife of the deceased had admitted in her cross examination that the truck did not meet with any accident but her husband died due to the heart attack while driving the vehicle. Thus it is admitted fact that the deceased had suffered a massive heart attack. Nothing has been brought on record to show that heart attack was caused due to any job-related stress or strain. The claimants could have examined the Conductor/Helper of the truck who were accompanying the deceased at the time of his death. It is not the case of the claimants that there was none in the truck except the driver. In the claim petition itself the claimants had stated that after the death of the deceased in the truck, the Cleaner of the vehicle came to the house of the claimants and he informed that the deceased is lying unconscious in the truck. He informed about the incident to the claimants. Thus, he would have been the best person to tell how the death occurred. The claimants intentionally did not adduce the evidence of Cleaner. If he had been produced before the court, he would have deposed against the claimants. It is also on record that the deceased was brought from the truck to the house of the claimants and Respondent No. 4, Smt. Jagjeet Saini where he was examined by the Doctor. The claimants had not examined the doctor who immediately attended the deceased at their residence. The claimants had not adduced the evidence of the doctors who had performed post mortem of the deceased. The doctors could have given their opinion with regard to strain sustained by the deceased. The sufferance of heart attack is not known. It may remain undetected for a petty long time which may cause the death at any time by massive heart attack. It cannot be presumed that heart attack is always caused due to the strain of the work. Thus there must be some evidence that the employment contributed to the death of the deceased. It is required to be established that the death occurred during the course of employment. Only because the death has taken place in the course of employment will not amount to an accident. The death must have arisen out of the accident and there is no presumption that the accident had occurred. In a case of this nature to prove that the accident has taken place, factors which would have to be established are stress and strain arising during the course of employment. If a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. The deceased may be suffering from heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. It has been held in Jyothi Ademma v. Plant Engineer Nellore and Anr. reported in 2006 (5) Supreme 327 in which the deceased died due to heart attack at the work place and a claim petition was preferred before the Commissioner and the Commissioner awarded the compensation for the death of the deceased. The High Court, set aside the award and held that the deceased workman was doing a job which could not have caused any stress and strain and the death occurred due to the heart attack and it cannot be said that the death has been caused by any accident arising out of and in the course of his employment. The Hon''ble Apex Court set aside the order and held that u/s 3 of the Act it has to be established by the claimant that the death occurred due to any stress or strain in his duty. The Hon''ble Apex Court also reiterated same view in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Anr. reported in AIR 2006 SCW 6009.
12. in view of the above discussion, we find that the deceased died as a result of heart attack; and it is not established that he suffered heart attack due to any stress and strain of his job. As such, there is no link or casual connection between his employment and his death. The findings of the learned Commissioner, therefore, are liable to be set aside.
13. Now it has to be decided as to whether there was any relationship of employer and employee between the deceased and Smt. Jagjeet Saini wife of the deceased. Perusal of the record reveals that the deceased was admittedly husband of the Respondent No. 4 Smt. Jagjeet Saini. The claimants had adduced the evidence of Ashok Kumar Chawla-PW2 who had stated in his evidence that the offending truck was purchased by the parents of Respondent No. 4-Jagjeet Saini and was given to her to ply. When Jagjeet Saini appeared before the court she had stated that the said truck was not given to her by her parents. Thus it is amply established that the truck belonged to Respondent No. 4-Jagjeet Saini and it was not given to her by her parents. It is also in the evidence of the parties that Respondent No. 4-Jagjeet Saini, wife of the deceased and the claimants also reside together and they eat and dine together. It is also in the evidence that the owner of the vehicle, wife of the deceased used to pay the deceased a sum of Rs. 2,000/- as salary and the deceased used to give that amount of salary to her wife for running the house. Thus the evidence clearly leads to take inference that the truck belonged to the deceased himself and it was purchased in the name of his wife, i.e. Respondent No. 4-Smt. Jagjeet Saini. It cannot be believed that wife would pay salary to her husband as stated by the claimants and the Respondent No. 4-Smt. Jagjeet Saini. The evidence of Ashok Kumar Chawla-PW2 that generally the salary was being given in his Truck Union Office in his presence could not be believed when the deceased, claimants and owner of the truck (wife) lived together. The owner (wife) would not come to transport office only to pay the salary to her husband (deceased). Thus this evidence is not probable and reliable and the present claim petition has only been filed to obtain the claim from the insurance company. Thus the findings of the learned Commissioner that there was a relationship of employee and employer in between the deceased and his wife is erroneous.
14. It is revealed from the record that the Appellant-United India Insurance Company Ltd. had deposited the entire amount of the award, i.e. Rs. 2,23,576/- before the court concerned and only � of the amount has been withdrawn by the claimants. The Insurance Company would be at liberty to recover the said amount in accordance with the law from the claimants.
15. In view of the foregoing discussion, the appeal deserves to be allowed and the award dated 24-11-2003 passed by the Commissioner for Workmen''s Compensation, Dehradun in W.C.A. No. 6 of 2001, Smt. Ratan Kaur and Ors. v. Smt. Jagjeet Saini and Ors. is liable to be set aside. Accordingly, the appeal is allowed and the award as mentioned above is hereby set aside. The Insurance Company-Appellant would be at liberty to recover the amount which has already been paid to the claimants by the Commissioner for Workmen''s Compensation in pursuance of his award in accordance with law. The amount lying with the Commissioner for Workmen Compensation be released in favour of the Appellant Insurance Company forthwith.
16. No order as to costs.
