IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.2827 OF 1999 Date:08.12.2009 Between:- The National Insurance Co. Ltd., rep.by its Manager and GPA Holder at Hyderabad. ..Appellant/Opposite Party No.2. And P.Bujjamma and another .. Respondents/Petitioner and Opposite Party No.1 JUDGMENT:- This appeal is directed against the order dated 19.12.1995 passed in W.C.No.39 of 1995 on the file of the Commissioner for Workmen’s Compensation, Nellore wherein the claim of respondent No.1 herein was allowed in part awarding compensation of Rs.53,075/- for the death of her husband. 2. Heard learned counsel for the appellant-insurer and none appeared for the respondents. Perused the records. 3. Respondent No.1 herein filed the claim application seeking compensation on account of death of her husband – P.Krishnaiah, who was working as Driver of Lorry bearing No.AEN 5161 and died on 24.05.1990 due to heart attack in the course of employment. According to the claimant, on 23.05.1990, the deceased took the lorry to Vizianagaram, unloaded the goods and stayed there for the night at the broker office to take back the said vehicle for transportation of goods from Vizianagaram and died due to heart attack. 4. The owner of the vehicle-respondent No.2 herein remained exparte. The appellant-insurer filed a counter opposing the claim and denying their liability inter alia on the ground that the deceased did not die of any accident that occurred in course of employment and his death is not relatable to any employment injury. 5. During the enquiry, the applicant was examined as P.W.1 and Exs.A-1 to A-3 were marked. No oral or documentary evidence was adduced on behalf of the appellant-insurer. 6. On a consideration of the evidence available on record, the learned Commissioner held that the deceased died in the course of employment. He further held that the claimant was entitled for compensation of Rs.53,075/- taking the minimum wage of the driver at Rs.865/- as per G.O.No.111 dated 16.11.1988 and also taking the age of deceased as 50 years. Aggrieved by the said Order, the insurer filed the present appeal. 7. Learned counsel for the appellant-insurer would mainly contend that the deceased did not die of any injury that occurred in course of employment and his death which occurred on account of heart attack, has nothing to do with his employment. 8. It is not disputed that the deceased was working as a driver in the lorry bearing No.AEN 5161 and on 23.05.1990, he took the lorry to Vizianagaram along with goods and the goods were unloaded on that day. It is also not disputed that the deceased died of heart attack while he was waiting in the Broker’s office for loading of goods on return journey. It is not the case of the applicant that the deceased was entrusted with the job of loading or unloading. He has nothing to do with the work of loading or unloading of the goods. He has not suffered any heart attack while driving the vehicle. It cannot, therefore, be said that the heart attack suffered by the deceased was on account of any stress or strain, which is relatable to the job of driving for which he was employed. In order to claim compensation for the death on account of any injury sustained in the course of employment, the claimant has to establish the nexus between the cause of death and the employment. 9. In a Judgment reported in Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and another, it is held as follows: “Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefore can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages.” 10. In the present case, the deceased was employed as a driver. The cause of death, namely the heart attack suffered by the deceased, is not relatable to the job of driving of the vehicle by the deceased. In other words, there is nothing on record to show that while driving the vehicle, the deceased was subjected to any such stress or strain, which has led to the heart attack suffered by him on the next day. The death of the deceased is, therefore, on account of a natural cause but is not on account of any employment injury or stress or strain relatable to the work involved in the course of employment. May be the deceased died while he was on duty and in the course of employment but under Section 3 of the Motor Vehicles Act, an employer would be liable for payment of compensation only when it is shown that the workmen suffered injury or death in an accident arising out of and in the course of employment. The death of the deceased on account of heart attack was certainly not arising out of any accident that occurred in the course of employment. When once it is shown that the death is not on account of any cause arising out of the employment i.e., due to a natural cause, the employer is not liable to pay any compensation and consequently, the appellant-insurer is not liable to indemnify the same. 11. It is stated that the entire compensation is deposited by the appellant- insurer and by virtue of the interim order dated 25.01.2000 passed in C.M.P.No.16097 of 1996, the claimant has already withdrawn half of the compensation amount. Having regard to the fact that the claimant is a poor widow of the deceased workman, it may be difficult for her to repay the amount at this length of time and hence, it is directed that the amount already withdrawn by the claimant may be recovered from the owner of the vehicle. The appellant-insurer is entitled for refund of the balance amount lying in deposit. The impugned order passed by the learned Commissioner is, accordingly, set aside. 12. In the result, the appeal is allowed, subject to the above direction. There shall be no order as to costs. __________________ G. V. SEETHAPATHY, J 8th December, 2009 AMD