.^.^-^•w^^-^ (^ H1GH COURT OF CHHATTiSGARH AT BILASPUR Smt Khatoon & Vs. Post of pronouncement ofjudgment and orders on "^/04/2009. Sd/- N.K. Agarwal Judge '\ HiGH COURT OF CHHATTISGARHAT BILASPUR Misc. ADpeal (0 No. 592 of2007 'i ! • j f' (..p. Appellants : 1. Smt. Husna Khatoon W/o Kalim Khan, aged 42 years. 2. Mohammad Balal Khan S/o Kalim @ Kader Khan,aged 25 years. 3. Jaki Khan S/o Kalim Khan @ Kader Khan, aged 20 years. 4. Taki Khan, S/o Kalim Khan @ Kader Khan, aged ISyears. 5. Rajda Khatoon D/o Kalim Khan @ Kader Khan, aged 24 years 6. Sajda Khatoon D/o Kalim Khan @ Kader Khan,aged22 years. 7. Gulshan aged 15 years through Natural guardian mother Husna Khatoon W/o Kalim Khan @ Kader Khan, 8. Pervej aged 12 years through naturai guardian mother Husna Khatoon W/o Kalim Khan @ Kader Khan. (Ail by caste Musiim, R/o Kaler, P.S. Angur, Distt. Alwer (Bihar) presently resident at Budhwari Bazar, Tahsii & Distt. Korba (CG). Versus Respondent : M/sUrmiia Transport Company, Qr. No: HiG 125, Maharana Pratap Nagar, Korba, Tahsii 8t Distt. Korba, CG. APPEAL UNDER SECTION 30 OFWORKMAN COMPENSATION ACT. (Sinale Bench: Hon'bSe Mr. N.K. Aaarwal, J.l Present : Shri'^i.K. Baeg, Advocate for the appellants. Shri A'bhijeet Sarkar, Advocate forthe respondent. ORDER (Passed on^_day of ApriS, 2009) 1. TheinstantMiscellaneousappealhasbeenpreferred under section 30 of the Workman Compensation Act, by unfortunate widow and children of deceased Kalim Khan @ Kader Khan, against the award dated 09.03.2007, passed by the Commissioner for Workman Compensation,, Labour Court,Korba, incase No. 7/wca/2006, whereby, the Commissioner has dismissed the ciaimofthe claimants. 2. The claimants preferred an appiication under Section 10 of Workmen Compensation Act, 1923 (for short 'the Act, 1923') claiming compensation of Rs. 3,00,000/- (Three Lakh? only) with interest @ 12 percent per annum on account of sad demise of Kaiim Khan, husband of daimant No. 1 and Father of claimant No. 2 to 8. 3, According to the claimants, the deceased Kalim Khan was employed by the respondent as Driver of Truck bearing registration No. CG12-ZC-2007. On 28.10.2005, while retuming from Raipur to Korba, Kalim Khan, having felt tiredness, parked the vehicle on Road side and wassleeping on the back seat of Truck; during sieep suffered heart attack and djed. Said accident arose out of and during the course of employment. 4. The respond^nt remained exparte before the Commissioner .X forWorkmen^Compensation, and did not contest theclaim. 5. —TheCommissioher for Workmen, Compensation, Korba, on a ciose scrutiny of the evidence !ed by the claimants and the r .A, 8. 9. material availabie on the record, he!d that the daimants have < failed to prove that the death of Kaiim Khan occurred during the course of empioyment and dismissed the application. The present appeal has been admitted by this court on the foilowing substantial question of law : "Whether death of Kalim Khan aiias Kader Khan had a casual connection with the nature of his employment? If yes, whether the Commissioner for Workmen's Compensation, Labour Court, Korba erred in dismissing the appiication for compensation?" Shri M.K. Baeg, learned counsel for the appeliants vehemently argued that death of Kalim Khan aiias Kader Khan had a casual connection with the nature df the empioyment and therefore the learned Commissioner for Workman Compensation has wrongly dismissed the application. Percontra Shri Abhijeet Sarkar, counsel for the respondent supported the award and contended that in the fapts and circumstances of the case, learned Commissioner has not committed any error in dismjssing the application, 1 have heard iearned counsel appearing for the parties, perused the pleadings and documents available on record and also the impugned award. The counsel for the cialmants has failed to point out any materlal from the record to iinksuch heart attackwith accidental injury. Oniy becau^e a person dies of heart attack, the same does not give rise to^autpmatic presumption that the same was by V-. ~ly (S) way of accident. A person may be suffering from a heart disease aithough he may not be aware ofthe same. Medical opinion will be of relevance providing guidance tp court in this behalf. Neither such material has been produced nor any Doctor hasbeen examined to establish that the death was caused by the 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 present nature would not be presumed. No lega! fiction therefore can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore woutd be of relevance. 10. The Supreme Court, in the matter of Sha1<untala Chandrakant Shreshti v. Prabhakar Maruti Garvali And Another, {reported in (2007) 11 SCC-668}, in para 36 held that only because the cause of death was due to heart attack, the same by itself may ndt be a ground to arrive at a conclusion that an accident had occurred resulting in injury. The Hon'ble Supreme Court further heid in para 38 that "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.................." 11. in view .of the legal proposition settled by Supreme Court in the above/lreferred case, and in view of the facts and circumstance^of the case, 1 have no hesitation to hoid that -the appellants'have failed to demonstrate that there is any casual connection between the injury and the accident and •sa^^ap^? ^x Sahu the work done in the course of employment. The substantial question of law is answered accordingly against the appellants. 12. The appeal has no merit and is liabie to be and is accordingly dismissed. In the facts situation ofthe case, the !• parties shail bear their own costs. j Sd/- 1 N.K.AgarwaI ^:^,.\.,);:', 'Judge ^- .'^. \.