IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD Tuesday, the sixth day of July, Two thousand and ten. Present: The Hon’ble Sri Justice P. Swaroop Reddy C.M.A.No. 1230 of 2002 Between: The New India Assurance Co.Ltd., Hyderabad. …Appellant/ Respondent No.2 And Smt. Surayya Begum And others ….Respondents/ Applicants PSR, J. C.M.A.No. 1230 of 2002 Judgment: This appeal is filed against the order of the learned Commissioner for Workmen’s Compensation/Assistant Commissioner of Labour-IV, Hyderabad in W.C.No. ACL-IV/44/2001. The second respondent - insurance company is the appellant herein. For the sake of convenience, the parties herein would be referred to as they are arrayed before the lower authority. 2. The applicants filed the workmen compensation case for the death of Mohd. Abdul Areef @ Ashrof, herein after called as the deceased, who was employed as driver on Auto bearing No. AP-13U- 91 belonging to the first respondent. On 30-06-2001, the deceased was performing his duties as auto driver and was waiting for passengers at Ravindranagar, Seethaphalmandi, behind H.No.12-12- 213/7, when he developed heart attack and died in the auto. The deceased developed stress and strain on account of his duty as auto driver, which amounts to accident. The deceased was immediately shifted to Gandhi Hospital, where postmortem examination was conducted. A case in Cr.No.129 of 2001 was registered. The deceased was paid Rs.3000-00 per month, apart from batta of Rs.25.00 per day and he was aged 38 years at the time of the accident. The applicants claimed compensation of Rs.4.00 Lakhs. 3. The first respondent admitted that the deceased was the driver of the auto bearing No. AP-13U-91 and that he died on 30.6.2001 due to heart attack, while performing his duties as driver. 4. The second respondent-Insurance company denied the averments made in the petition. It contended that the deceased was not the driver of the auto belonging to the first respondent; the death was not an accident and that the applicants are not entitled for any compensation. 5. The authority below took into consideration, the entire material on record and on the basis of the evidence of AW-1 and RW-1 and Exs A-1 to A-7 and Ex D-1 held that the deceased was the driver engaged by the first respondent; the death was an accident and as such the applicants are entitled for compensation and accordingly awarded compensation of Rs.3,45,947.00. As against the same, the present appeal is filed. 6. Now the point for consideration is whether there are any grounds for allowing the appeal. 7. The main contention of the learned counsel for the appellant is that the deceased was not engaged as driver of the auto belonging to the first respondent; as such he is not employed by the first respondent and that the death of the deceased cannot be said to be accident, therefore, the claimants are not entitled for compensation. 8. The contention of the learned counsel for the respondents- applicants is that the appeal is not maintainable, as the amount is not deposited before the lower authority before filing the appeal. The learned counsel for the appellant submits that the amount was already deposited. A letter is also filed by the applicants before the Registry of this court stating that due to pendency of the appeal, they could not withdraw the amount, which shows that the amount is deposited. 9. The next contention of the learned counsel for the applicants is that the deceased was employed by the first respondent-owner which fact is also admitted by him and he died on account of the stress of the employment, due to which he suffered attack and as such it can be called as accident and that the applicants are entitled for compensation. 10. As far as the question of the deceased being employed as auto driver by the first respondent, there cannot be any dispute about the same, as the deceased was found dead in the auto, in the driver’s seat and the first respondent-owner admitted that he was employed by him, as a driver of the said auto. There is no necessity of thorough investigation into this aspect to give a finding. The circumstances and the material on record is sufficient to hold that the deceased was the driver of the auto owned by the first respondent. 11. Coming to the question whether the death can be called as accident and whether the applicants are entitled for compensation, the learned counsel for the appellant vehemently contended that merely because the deceased died in the auto, as auto rickshaw driver, it cannot be said that it is an accident to enable the applicants to claim compensation. It may be a natural death or heart attack suffered by him in the natural course, not amounting to death due to stress or strain on him. 12. In support of his contention, the learned counsel for the appellant relied on the decision of the Hon’ble Apex Court in Shakuntala Chandrakant Shreshti v. Prabhakar Maruthi Garvali[1] . In paragraphs 23 to 27 of the Judgment, the Hon’ble Supreme Court observed that: “There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation[2] in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. THE principles are :(1) There must be a causal connection between the injury and the accident arid the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records 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 fact of each case. INJURY suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed. THERE is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction. AN accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are: 1. stress and strain arising during the course of employment 2. Nature of employment 3. injury aggravated due to stress and strain.” 13. In paragraph-29, above, it is observed that “only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. “ 14. In the above case before the Hon’ble Supreme Court, the deceased was working as a cleaner in the vehicle; he suddenly developed chest pain, admitted into the Government Hospital, where he was declared dead. He was on duty, at the time when he suffered heart attack. In that case, the deceased died, while he was getting down from the vehicle, after suffering heart attack. The circumstances in the present case are somewhat similar to the case mentioned in the Judgment of the Hon’ble Supreme Court. In the case on hand also, the deceased died of heart attack and the material available to show the said fact is the postmortem report, which reveals that the deceased died on account of heart attack. In this case, the deceased was the driver of the auto, unlike in the case cited supra, where the deceased was only cleaner of the lorry, it can not be disputed that the drivers suffer more stress than a cleaner and when the death of clear on account of similar kind of stress can be considered as accident, the death of the driver has to be definitely considered to be so. 15. It is very difficult to get direct evidence in a case of this nature, as to how the deceased died. He was found lying dead in the Auto of which he was the driver. May be after suffering heart attack on account of stress and strain he might have died. It may also be a case of heart attack in usual course. But, when he was at the steering and when he suffered attack, the probability of presumption is in favour of the death on account of the heart attack, on account of stress of driving would be more, as, in case, a vehicle suddenly comes in front of the vehicle driven by the victim or a situation of accident arises, the victim driver would naturally develop sudden pressure of blood; that might cause anxiety and may lead to death. In the present case, two views are possible i.e., death on account of natural heard attack un-connected with the stress or strain of the driving or heart attack caused on account of the stress and strain due to driving. As no body was present at that time, it is not possible to decide whether there was any immediate cause for his suffering accident arising out of stress and strain in driving that caused his death. When views are possible, when this being a social welfare legislation enacted for the benefit of Workmen and their dependents, I am inclined to take the view in favour of workmen i.e., dependents of the workmen and hold that the death was on account of stress and strain of driving and there is medical evidence also to support that view. Thus the dependents of the deceased are entitled for compensation under Workmen’s Compensation Act. In view of my above finding, the appeal is liable to be dismissed. 16. In the facts and circumstances of the case, it cannot be said that the compensation awarded is high, though the quantum of compensation awarded is also disputed by the appellant. The appellant also contended that the rate of interest i.e., 9% per annum awarded is high, which I am inclined to accept, in view of the recent pronouncement of the Hon’ble Apex Court. 17. Considering all these circumstances, the appeal is allowed in part, to the extent of reducing the rate of interest from 9% per annum to 7.5% per annum. No costs. ________________________ P. SWAROOP REDDY, J. July 6, 2010. *BVS [1] AIR 2007 SC 248 [2] 1996 (6) SCC 1