IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 47 of 2005 Oriental Insurance Company Limited … Appellant. Vs. Smt. Sarswati Devi and 5 others .. Respondents. Mr. T.A. Khand, Advocate for the appellant. Mr. B.M. Pingal, Advocate of the claimants/respondents. None has appeared on behalf of respondent No.6. Dated: 22-5-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 6-12-2004, passed by Workmen’s Compensation Commissioner, Champawat, in WCC No. l1 of 2002. 2- The relevant facts of the case are that Devi Dutt Bhatt, husband of Smt. Sarswati Devi, petitioner, was employed as driver in Truck No. U.P. 03/0949, owned by opposite party/respondent No.6. On 29-1- 2001, Devi Dutt Bhatt died due to heart attack during the course of his employment. At the time of accident he was 40 years of age and was getting Rs. 2,000/- per month as salary. The claimants who are widow and children of the deceased have filed claim petition before the Workmen’s Compensation Commissioner (hereinafter referred as the Commissioner ) for compensation. 3- The owner of the truck filed his written statement and alleged that at the time of death of driver no extra work was taken from him and his death occurred while he was sitting in another truck bearing registration No. U.P. 03/0940. He also alleged that the death has occurred due to some unknown reason. He was paying Rs. 1,500/- per month salary to the deceased. The owner also alleged that the truck was insured with The Oriental Insurance Company. 4- The Insurance Company also filed its written statement and alleged that the deceased had not died during the course of his employment due to extra load of work, but he died to his natural death due to sudden heart attack, therefore, the insurance company cannot be held liable to pay compensation. 5- The learned Commissioner framed issues in the petition. Thereafter, parties led evidence in support of their contentions. The learned Commissioner after hearing learned counsel for the parties and perusing the material on record, came to the conclusion that the death of the workman has occurred during the course of his employment and the claimants are entitled to get compensation and accordingly awarded a sum of Rs. 1,40,627-50 as compensation against the opposite parties along with interest @ 9% per annum from 29-1- 2001 upto the actual date of payment. 6- Feeling aggrieved the Oriental Insurance Company has preferred this appeal before this Court. 7- Heard learned counsel for the parties and perused the record. 8- Learned counsel for the appellant/insurance company has challenged the impugned judgment and award on the ground that the death of the workman was a natural death and has no nexus to his work. He also submitted that the deceased died in another vehicle bearing registration No. U.03-0940 and cause of death of the deceased could not be ascertained by the Doctor, hence, it cannot be presumed that the death has occurred during the course of employment. Therefore, the lower court has committed gross illegality by way of awarding compensation in the instant case. 9- It is the admitted case that the deceased Devi Dutt Bhatt was employed as driver in Truck No. U.P. 03/0949 and at the time of his death he was transporting the goods by the said truck from Tanakpur to Dharchula. To prove their claim, claimants examined P.W.2, Prakash Chandra Bhatt, cleaner of the Truck No. U.P. 03/0949. He is an important witness. According to him on 28.1.2001 the Truck No. U.P. 03/0949 was going Dharchula from Tanakpur with cement. Devi Dutt driver has tired. In the next morning, i.e. on 29-1-2001, Devi Dutt made strenuous efforts for unloading the cement from the said truck. He has completely exhausted and was under mental stress and for these reasons Devi Dutt suffered heart attack and died. No reason has been assigned to this witness as to why he would have told wrong facts. The testimony of this witness is trustworthy and reliable. On behalf of opposite parties, D.W.1, Madan Singh, owner of the truck was produced. This witness has stated that the deceased had died prior to unloading the goods. In his cross-examination he has admitted that both the trucks were together and the deceased driver was unloading the goods of his truck sitting in the another Truck. Therefore, in view of the independent eye witness account given by P.W.2, it is quite clear that the deceased has died during the course of his employment while he was getting unload the goods from his truck. 10- So far as the quantum of compensation is concerned, the learned Commissioner has assessed the monthly earning of the deceased as Rs. 1,500/-. The owner of the Truck has himself admitted that he was paying Rs. 1,500/- per month to the deceased. The claimants has alleged the age of the deceased as 40 years and this fact was ascertained by the learned Commissioner from the entry made in the Parivar Register. Therefore, the formula adopted by the Commissioner in calculating the amount of compensation cannot be said to be improper. The Commissioner also awarded a sum of Rs. 2,500/- towards funeral expenses and the same cannot be said to be unreasonable. I do not find any ground to interfere with the impugned judgment and award. 11- The appeal lacks merit and is liable to be dismissed. 12- Accordingly the appeal is dismissed. The impugned judgment and award dated 6.12.2004 is confirmed. (B.C. Kandpal, J.) ISB