Uttarakhand High CourtNational Insurance Company Limited vs Smt. Ganga Devi And Another on 17 August, 2021Author:Sharad Kumar SharmaBench:Sharad Kumar SharmaHIGH COURT OF UTTARAKHAND AT NAINITAL\n\n                   Appeal from Order No. 443 of 2015\n\nNational Insurance Company Limited                           .....Appellant\n\n                                     Versus\nSmt. Ganga Devi and another                                  .... Respondents\nPresent :-\nMr. Lalit Belwal, Advocate for the appellant.\nMr. M.C. Kandpal, Senior Advocate for respondent No.1.\nMr. Dinesh Chandra Gahatori, Advocate for respondent No.2.\n\n                                                    Dated: 17th August, 2021\n\n                              JUDGEMENTHon'ble Sharad Kumar Sharma, J.(Through Hybrid Mode)\n\n               The appellant, Insurance Company, herein, has put a\nchallenge to the impugned award, as it had been rendered by the\nWorkmen Compensation Commissioner / Presiding Officer, Labour\nCourt, Haldwani, District Nainital, in the proceedings of Employee\nCompensation Application No. 274 of 2014, Smt. Ganga Devi Vs.\nShri Pitamber Kandpal and another, whereby, the learned Presiding\nOfficer, Labour Court, Haldwani, while adjudicating upon the award\nand the claim which was raised by the claimant, respondent No. 1,\nherein, had partially decreed the award in favour of the claimant,\ndirecting therein, to the Insurance Company to pay an amount of\nRs.3,20,773/-, along with Rs. 5,000/- as an amount payable towards\nthe funeral expenses, i.e. totalling to an amount of Rs.3,75,773/- to the\nclaimants, as a compensation along with an interest payable on it @\n8%, from the date of accident, till the date of its actual payment.2.             The appellant, herein, i.e. the Insurance Company, and\nhad invoked,Section 30of the Workmen Compensation Act, 1923,\nhereinafter to be called as an Act of 1923, putting a challenge to the\naward on various counts, and particularly, the basic ground of\nchallenge to the award dated 27.07.2015, was based on a premise, that2since the death had not occurred due to the "accident", and because of\nfact that, accordingly to the appellant, the cause of death was not or it\ncannot be attributed to have chanced during the course of\nemployment, no compensation, at all could be paid to the claimants\nand particularly, by the Insurance Company itself, with whom, the\noffending vehicle, in question, was registered.3.           Further, the argument of the learned counsel for the\nappellant is that, if the provisions which are contained under theWorkmen Compensation Act, 1923, are taken into consideration, in\nfact, the amount of compensation, which could be awarded by the\nCompensation Commissioner, he does not have a power to award the\nfuneral expenses, as according to him none of the provisions\ncontained therein under the Act, provides for the payment of funeral\nexpenses, apart from it, it was contended that the interest as awarded,\non the awarded amount, apart from the fact that, it was on the higher\nside, but the Workmen Compensation Commissioner, since has no\npower to levy interest on the awarded amount and hence, levying of\nthe interest @ 8% from the date of the accident, too was not\nsustainable, in the eyes of law, being contrary to the provisions of Act\nof 1923.4.           It was further contended by the appellant's Counsel, for\nthe Insurance Company, that since the claimant, prior to the initiation\nof the proceedings before the Compensation Commissioner, in the\nabsence of there being a prior notice issued to them underSection 10of the Act, the entire proceedings would be vitiated.5.           The    learned   counsel    for   the   appellant/Insurance\nCompany, had submitted, that after the occurrence of the alleged\naccident, the deceased, when he fainted and became unconscious, he\nwas taken to the hospital and before he could reach, to the hospital, he\nmet with the sad demise, however, later on, an FIR was also alleged to\nhave been registered and a post mortem was conducted on the3deceased, but as per the opinion which was expressed by the Doctor,\nwho conducted the post mortem on the deceased, had not been able to\nascertain or opined any specific reason for the cause of death, and\nrather the visera was preserved, which was later on sent for\nexamination in the FSL Laboratory.6.          But, for the purposes of scrutinizing the aforesaid set of\narguments, the brief facts, which are necessarily required to be\nconsidered by this Court, for the purposes of arriving at a logical\nconclusion, are that the facts, which apparently engages consideration,\nare that the bus, in question, i.e. bearing registration No. UK-04-\nPA/0170, the owner of which, was respondent No. 2, was being plied\nunder a contract with the KMOU Limited, and on the date of the\nincident, i.e. 11th March, 2012, it was contended that the bus, in\nquestion, was being used for purposes of carrying a marriage party,\nfrom Ratighat to Vishalkote, in which, the deceased late Mr. Shankar\nSingh, the husband of the claimant respondent No.1, was working as a\nConductor, in the Bus.7.          It is the case pleaded by the parties before the\nCompensation Commissioner, that on the date of incident of 11th\nMarch, 2021, when the aforesaid marriage party reached at the place\nof marriage of the bride, after attending the marriage party and after\nhaving dinner, the deceased late Mr. Shankar Singh, is said to have\nreturned back and was sitting in a stationery bus, which had carried\nthe marriage party, and there while sitting in the bus, he suffered a\nsevere pain in his chest, which however, could be witnessed and\nrecognized by the Driver of the bus Mr. Ramesh Chandra, who took\nthe deceased late Mr. Shankar Singh, to a nearby hospital at Kherna,\nwhere on reaching the hospital, he was declared to be dead.8.          The claimant's case was that, at the time of the incident\nof 11th March, 2012, the deceased late Mr. Shankar Singh, who was\nthen working as a Conductor, in the bus was drawing a salary of RS.48,000/- p.m., apart from it, he was given an additional amount of\nRs.50/- per day, to meet his personal expenses, and at the time, when\nthe accident has occurred since he was 46 years of age, she would be\nentitled for the payment of compensation to the tune of Rs. 6,65,160/-,\napart from the interest payable on it @ 12% per annum.9.           In support of her contention, in the proceedings which\nwere held before the Compensation Commissioner, the claimant had\nfiled the written statement, apart from recording her statement as\nPW1, and the driver, who had appeared in the witness box in support\nof the witness of the claimant as PW2, apart from recording the oral\nstatement, had also placed before the Court the copy of the FIR, the\nregistration of licence of the deceased as a Conductor, panchanama,\nthe copy of the post mortem report, the phot ID card, the fitness\ncertificate of the bus, which was being plied on the date of the\nincident, the permit of the bus, the registration certificate, as well as\nthe insurance policy, in order to substantiate, that on the date of the\nincident the bus was being validly plied, under the valid documents.10.          The owner of the bus, i.e. respondent No.2, herein, has\nin his statement, accepted the fact that the bus on the date of the\nincident was validly insured with the appellant which was valid for\nthe period from 7th August, 2011 to 6th August, 2012. But, however,\nbesides admitting the fact that the bus was validly insured and was\ncarrying the requisite documents, and a valid permit, when it was\nbeing plied for the purposes of carrying the marriage party, but in\norder to deny the claim of compensation, in the written statement\nwhich was filed by the Insurance Company, appellant, herein, was on\nthe ground that since in the absence of there being any valid ground or\nany fact of evidence which was ever adduced by the claimant, to\nsubstantiate that the cause of death, caused on account of an incident\nhad accrued during the course of employment, the claimant would not\nbe entitled for any claims as it has been prayed for in the Claim\nPetition.511.            The Insurance Company further submitted, that when the\nsaid incident occurred on 11th March, 2012, in fact, it was rather, it\nwas incumbent on the owner of the vehicle, that a prior notice ought\nto have issued to the Insurance Company, parting with the information\nto the appellant, about the occurrence of the said incident, resulting to\nthe death of Conductor, late Mr. Shankar Singh.          Hence, in the\nabsence of there being, any such prior notice, which was sent to the\nappellant, the claimant, would not be entitled for any compensation\nfrom the Insurance Company, though they might raise their claim\nfrom the principle employer of the deceased underSection 3of the\nAct of 1923.12.            In the written statement which was thus filed, the\nInsurance Company, who has also specially had come up with the\ncase before the Employees Compensation Commissioner, to the\neffect, that since there is no nexus or relationship of the cause of the\ndeath, having chanced during the course of employment, and as a\nresult of an "accident", the Insurance Company cannot be made liable\nto pay the compensation because, there liability could be harnessed\nonly when the fact is proved and established by evidence that the\ncause of death was an "accident". Though, during the course of\nargument, the learned counsel for the appellant has very fairly\nadmitted the fact that he is not disputing the award, from the\nperspective that the death of the deceased late Mr. Shankar Singh, has\nnot occurred during the "course of the employment". Hence, this\nquestion may not be of much concern to be answered by this Court,\nwhile deciding this matter, particularly, when the appellant himself\nadmits the fact that the incident of 11th March, 2012, has chanced\nduring the course of employment of the deceased late Mr. Shankar\nSingh. But the only distinction, which has been carved out by the\nappellant while pressing, the present Appeal from Order underSection\n30of the Act of 1923, was that for the purposes of claiming a\ncompensation under the Act, it is not the exclusive employment,6which is a necessary fact and a factor to be considered for the grant of\ncompensation, but what is more important is that the injury or death\nmust have been caused because of the "accident".13.          The exception, which has been carved out by the learned\ncounsel for the appellant, is that, under the given set of facts and\ncircumstances of the present case, since there was no actual accident\nwhich has caused and since, the vehicle was not involved in any\naccident and in fact, the deceased after having his dinner, was casually\nsitting in the bus and hence it cannot be said that the cause of death,\nwas an accident, which has chanced during the course of employment\nand, particularly, because of the fact that no cause of death, could be\nascertained even by the Doctor, who conducted the post mortem on\nthe deceased. His case is, that the appellant cannot be made liable to\npay the amount of compensation under the Act of 1923, in view of\nthe provisions contained underSection 64 (v) (B)of the Insurance\nAct. Because for harnessing liability of compensation on him both the\naspect, i.e. 'during course of employment' and the 'accident' have\nto chance simultaneously.14.          Under the aforesaid backdrop and the tenacity of the\nargument, ultimately boiled down on a very confined conspicuous,\nwhich was raised by the learned counsel for the appellant, it was that\nsince there was no accident, as such, no compensation would be made\npayable by the Insurance Company.15.          In order to meet the arguments, which had been extended\nby the learned counsel for the appellant, if the principle intention of\nthe legislation is taken into consideration, it was an act which was\nnotified on 5th March, 1923, whereby, it intended to protect a certain\nclass of employees to be adequately compensated, for the injuries or\ndeath, caused because of the accident, and hence, the Act intended to\nprovide for payment of compensation to the employees or their\ndependants in the case of injury or a death, which may or might have7chanced on account of his / or her engagement during the course of\nemployment, and particularly because of accident.16.           If the basic intention of the Act, is taken into\nconsideration, the amount thus made payable to an employee by way\nof compensation or his dependants in case of death, there are three\nbasic elements, which are simultaneously and necessarily required to\nbe satisfied :-i.     An accident;\n              ii.    Injury or a death;iii.   That injury or death was during the course of\n                     employment.17.           Unfortunately, under the Act, the term accident has not\nbeen defined and, hence, the interpretation of the term 'Accident'\ncould only be borrowed from the judicial precedence, which has\ndetermined as to how the term 'accident' would be interpreted, and to\nthe situations, where the employer or the Insurance Company, could\nbe made liable to pay the compensation for the injury or the death of\nan employee which is caused during the course of employment. The\nemployer's liability underSection 3of the Act, has been limited from\nthe view that, if personal injuries are caused to an employee by an\naccident, arising out of in the "course of employment", the argument\nof the learned counsel for the appellant is that, since it was not an\n"accident" of the bus in its true and literal sense, in that eventuality,\nthe liability of paying the compensation underSection 3of the Act,\nought not to have been fastened upon the employer. For the purposes\nof better dealing with the case,Section 3of the Act of 1923 is\nextracted hereunder :-"3. Employer's liability for compensation (1) If\n       personal injury is caused to a 14[employee] by accident arising\n       out of and in the course of his employment, his employer shall\n       be liable to pay compensation in accordance with the provisions\n       of this Chapter:8Provided that the employer shall not be so liable --(a) in respect of any injury which does not result in\n      the total or partial disablement of the [employee]\n      for a period exceeding [three] days;(b) in respect of any [injury, not resulting in\n      death 3[or permanent total disablement] caused by]\n      an accident which is directly attributable to--(i) the [employee] having been at the time\n             thereof under the influence of drink or\n             drugs, or(ii) the wilful disobedience of the\n             [employee] to an order expressly given, or to\n             a rule expressly framed, for the purpose of\n             securing the safety of [employees], or(iii) the wilful removal or disregard by the\n             [employee] of any safety guard or other\n             device which he knew to have been\n             provided for the purpose of securing the\n             safety of [employee], [***].[***]\n       [(2) If a [employee] employed in any employment\nspecified in Part A of Schedule III contracts any disease\nspecified therein as an occupational disease peculiar to\nthat employment, or if a [employee], whilst in the\nservice of an employer in whose service he has been\nemployed for a continuous period of not less than six\nmonths (which period shall not include a period of\nservice under any other employer in the same kind of\nemployment) in any employment specified in Part B of\nSchedule III, contracts any disease specified therein as an\noccupational disease peculiar to that employment, or if a\n[employee] whilst in the service of one or more\nemployers in any employment specified in Part C of\nSchedule III for such continuous period as the Central\nGovernment may specify in respect of each such\nemployment, contracts any disease specified therein as an\noccupational disease peculiar to that employment, the\ncontracting of the disease shall be deemed to be an injury\nby accident within the meaning of this section and, unless\nthe contrary is proved, the accident shall be deemed to\nhave arisen out of, and in the course of, the employment:[Provided that if it is proved,--(a) that a [employee] whilst in the service of one\n      or more employers in any employment specified in\n      Part C of Schedule III has contracted a disease9specified therein as an occupational disease\n      peculiar to that employment during a continuous\n      period which is less than the period specified under\n      this sub-section for that employment; and(b) that the disease has arisen out of and in the\n      course of the employment, the contracting of such\n      disease shall be deemed to be an injury by accident\n      within the meaning of this section:Provided further that if it is proved that a\n[employee] who having served under any employer in\nany employment specified in Part B of Schedule III or\nwho having served under one or more employers in any\nemployment specified in Part C of that Schedule, for a\ncontinuous period specified under this sub-section for\nthat employment and he has after the cessation of such\nservice contracted any disease specified in the said Part B\nor the said Part C, as the case may be, as an occupational\ndisease peculiar to the employment and that such disease\narose out of the employment, the contracting of the\ndisease shall be deemed to be an injury by accident\nwithin the meaning of this section.]\n       [(2A) If a [employee] employed in any\nemployment specified in Part C of Schedule III contracts\nany occupational disease peculiar to that employment,\nthe contracting whereof is deemed to be an injury by\naccident within the meaning of this section, and such\nemployment was under more than one employer, all such\nemployers shall be liable for the payment of the\ncompensation in such proportion as the Commissioner\nmay, in the circumstances, deem just.]\n       (3) [The Central Government or the State\nGovernment], after giving, by notification in the Official\nGazette, not less than three months' notice of its intention\nso to do, may, by a like notification, add any description\nof employment to the employments specified in Schedule\nIII and shall specify in the case of employments so added\nthe diseases which shall be deemed for the purposes of\nthis section to be occupational diseases peculiar to those\nemployments respectively, and thereupon the provisions\nof sub-section (2) shall apply [,in the case of a\nnotification by the Central Government, within the\nterritories to which this Act extends or, in case of a\nnotification by the State Government, within the State]\n[***] as if such diseases had been declared by this Act to\nbe occupational diseases peculiar to those employments.]\n     (4) Save as provided by [sub-sections (2), (2A)]\nand (3) no compensation shall be payable to a10[employee] in respect of any disease unless the disease is\n             [***] directly attributable to a specific injury by accident\n             arising out of and in the course of his employment.(5) Nothing herein contained shall be deemed to\n             confer any right to compensation on a [employee] in\n             respect of any injury if he has instituted in a Civil Court a\n             suit for damages in respect of the injury against the\n             employer or any other person; and no suit for damages\n             shall be maintainable by a [employee] in any Court of\n             law in respect of any injury -(a) if he has instituted a claim to\n                   compensation in respect of the injury before a\n                   Commissioner; or(b) if an agreement has been come to\n                   between the [employee] and his employer\n                   providing for the payment of compensation in\n                   respect of the injury in accordance with the\n                   provisions of this Act."18.          He further submitted that if the proviso toSection 3of\nthe Act, is taken into consideration, it is rather the onus, which has to\nbe discharged by the employer, as well as the claimant themselves, to\nshow and establish beyond doubt, that the injuries or the death was\ncaused and was directly attributable to the accident and, in the absence\nof there being any established evidence or proof on record to the said\nfact on record, the claimants, would not be able to succeed in being\nawarded with the compensation by the appellant until and unless, they\ndischarged their burden to prove, that the cause of death was an\naccident, which has chanced during the course of employment.19.          The issue, which would be of much more concern and\nwhich has also been alternatively argued by the claimant, before the\nCourt below too, that though despite of the admitted fact that the\ndeceased has died, while sitting in the bus, due to severe pain in the\nchest and because of the heart stroke, their contention is that since the\ndeath was caused during the course of employment, they would be\nentitled for the compensation, from the Insurance Company and the\nlogic behind it, as it had been raised by the claimant in the written11statement, as well as the statement recorded by the witness PW1,\nGanga Devi and PW2, i.e. Ramesh Chandra, the Driver of the bus.\nThey have submitted that the cause of death of the deceased late Mr.\nShankar Singh, was on account of the work stress, because he was\ncontinuously engaged in loading and unloading of the luggage of the\nmembers of the marriage party from the roof carrier of the bus, which\nhas led to an extreme stress and, hence, the claimant would be entitled\nfor the compensation from the insurance company, as stress being the\ncause of death, would make the appellant to pay the compensation, as\nit would fall within the ambit of policy.20.          On the contrary, the argument of the learned counsel for\nthe Insurance Company, was that even if it is presumed for sake of\nargument, as extended by the claimant, that the cause of death was the\nstress, in that eventuality too, apart from the fact that the stress was\nnot shown or pleaded as to be a cause of death, in the post mortem\nreport, apart from it, the factum of stress was required to be proved by\nthe claimants by leading evidence and since the claimants have not\ndischarged their burden, they would not be entitled for the\ncompensation, even if they contend that the cause of death was\nbecause of stress.21.          Ultimately, the learned counsel for the parties, to the\npresent Appeal from Order, and particularly, the learned counsel for\nthe appellant, has only solicited an answer and pressed his appeal\nfrom only one major perspective, i.e. "whether the sufferance of\npain in the chest of the deceased, while sitting in the stationary\nbus, which ultimately, led to a heart stroke, causing the death,\nwould amount to be an accident for the purposes of the Act of\n1923" ?22.          As this Court has already observed that the term\n'accident', has not been defined under the Act, hence, the learned\ncounsel for the appellant, in order to substantiate his arguments, has12made reference to the various pronouncements, which had been\nrendered by the different Courts in order to substantiate his argument,\nthat the fact and circumstances, under which, the death of the\ndeceased was caused would not amount to be an accident to bring it\nwithin the ambit of the Act of 1923, which would be a pre condition\nto be established before, settling the compensation to be paid by the\nappellant.23.In relation thereto, the reference has been made by the\nlearned counsel for the appellant to the judgment reported inAIR\n2006 SC 2830, Jyothi Ademma Vs. Plant Engineer, Nellore and\nanother, and particularly, he has made a reference to para 8 ofthe\nsaid judgment, which had laid down, that the accident arising out of,\nin the course of the employment and the workmen having died as a\nresult of the heart stroke at the work place, would only be taken into\nconsideration, particularly, when the fact, that the deceased was\nsuffering from a heart problem at the time when the death was caused\nand, in the absence of there being any proof to the contrary, if the fact\nof the reason for death is not attributable to the course of employment,\nit will not amount to be accident, for the purposes of the act for\ndetermining the compensation, payable by the Insurance Company.24.          According to the principleslaid down bythe aforesaid\njudgment of the Hon'ble Apex Court, it is not an exclusive stress of\nwork, which is obviously bound to be proved, but that stress has to be\nalso co-related to the nature of work and nature of work responsibility,\nwhich is being discharged, which would always be variable under a\ndifferent set of cases and facts as involved therein, and since the\nclaimant has not been able to establish and prove the fact of stress,\nhence, in view of the principlelaid down inpara 8 ofthe said\njudgment, the Insurance Company cannot be made liable to pay the\ncompensation. Para 8 ofthe said judgmentis extracted hereunder :-13"8. In the present case it has been brought on record that\n      the deceased was suffering from chest disease and was\n      previously being treated for such disease. The High Court also\n      noted that the job of the deceased was only to switch on or off\n      and, therefore, the doctor had clearly opined that there was no\n      scope for any stress or strain in his duties. In view of the factual\n      findings recorded, the High Court's judgment does not suffer\n      from any infirmity."25.          The learned counsel for the appellant, in order to further\nsubstantiate his argument has made reference to certain paragraphs\nof the judgment ofJyothi Ademma(Supra) whereby, while\ninterpreting the impact of personal injuries as contemplated underSection 3of the Act, for making a person entitled for compensation,\nbecause the injuries were caused to him during the course of\nemployment, the Hon'ble Apex Court has held, that it is always the\nburden of the claimants or the prosecution to establish by cogent\nevidence, that there was a casual connection between the death of the\nworkmen and his nature of employment.            Meaning thereby, the\nHon'ble Apex Court has laid down that the employment exclusively\nin itself must be contributory to the cause of death, merely because of\nthe fact that a person was suffering from a disease and had died\nbecause of the heart stroke, as it is in the instant case, that in itself\nexclusively will not fall to be an accident, though it might be that the\nincident has chanced during the course of employment.26.In relation thereto, a reference may be had to para 5, 6, 7\nand 8 ofthe said judgment, and ultimately, the conclusion, which has\nbeen drawn by the Hon'ble Apex Court inthe said judgment, the\nreference of which, has been made by the learned counsel for the\nappellant, is that there has had to be an expression of accident to be\nproved by evidence and it cannot be in an ordinary sense it cannot be\nused as a word denoting a mis-happening or an untoward incident,\nexclusively, which has not been pre-conceived, nor expected or\ndesign, but it is a sudden occurrence, which takes place and that\nsudden occurrence for the purposes of the Act, would be treated to be14an accident, only when the claimant proves the fact by evidence that\nthe act complained of, was directly had a nexus and relativity to the\nnature of employment and nature of work which was being discharged\nat the time when the incident has occurred. This could not have been\nthe case in the present case because, according to the pleadings of the\nclaimant themselves, the deceased after having his dinner, came inside\nthe bus and was casually sitting and hence, the alleged period of\nstress, apart from that it was not proved, it was not prevailing at the\ntime when the incident has chanced on 11th March, 2012, resulting to\nthe death of the deceased. Hence, it could be said that the cause of\ndeath be directly made relatively applicable, to be the cause of an\naccident in order to make the appellant liable to pay the compensation.\nPara 5, 6, 7 and 8 ofthe said judgmentare extracted hereunder :-"5.Section 3(1)of the Act which is relevant for the purpose\n   of this case reads as follows:"3. Employer's liability for compensation.--(1) If personal\n       injury is caused to a workman by accident arising out of and in\n       the course of his employment, his employer shall be liable to\n       pay compensation in accordance with the provisions of this\n       Chapter:Provided that the employer shall not be so liable--(a) in respect of any injury which does not result in the\n       total or partial disablement of the workman for a period\n       exceeding three days;(b) in respect of any injury, not resulting in death or\n       permanent total disablement, caused by an accident which is\n       directly attributable to--(i) the workman having been at the time thereof under the\n           influence of drink or drugs, or(ii) the wilful disobedience of the workman to an order\n           expressly given, or to a rule expressly framed, for the\n           purpose of securing the safety of workmen, or(iii) the wilful removal or disregard by the workman of\n           any safety guard or other device which he knew to have\n           been provided for the purpose of securing the safety of\n           workmen;"6. UnderSection 3(1)it has to be established that there was\n   some causal connection between the death of the workman and his\n   employment. If the workman dies as a natural result of the disease\n   which he was suffering or while suffering from a particular disease\n   he dies of that disease as a result of wear and tear of the\n   employment, no liability would be fixed upon the employer. But if15the employment is a contributory cause or has accelerated the\n      death, or if the death was due not only to the disease but also the\n      disease coupled with the employment, then it can be said that the\n      death arose out of the employment and the employer would be\n      liable.7. The expression "accident" means an untoward mishap\n      which is not expected or designed. "Injury" means physiological\n      injury. In Fenton v. Thorley & Co. Ltd. it was observed that the\n      expression "accident" is used in the popular and ordinary sense of\n      the word as denoting an unlooked for mishap or an untoward event\n      which is not expected or designed. The above view of Lord\n      Macnaghten was qualified by the speech of Lord Haldane, L.C. in\n      Trim Joint District School Board of Management v. Kelly as\n      follows:"I think that the context shows that in using the word 'designed'\n      Lord Macnaghten was referring to designed by the sufferer."""8. In the present case it has been brought on record that\n          the deceased was suffering from chest disease and was\n          previously being treated for such disease. The High Court also\n          noted that the job of the deceased was only to switch on or off\n          and, therefore, the doctor had clearly opined that there was no\n          scope for any stress or strain in his duties. In view of the factual\n          findings recorded, the High Court's judgment does not suffer\n          from any infirmity."27.             On another judgment, on which, the reliance has been\nplaced by the learned counsel for the appellant is that reported in\n(2009) 13 SCC 405, Malikarjuna G. Hiremath Vs. Branch\nManager, Oriental Insurance Company Ltd. and another. In that\ncase, the factual backdrop was that while determining the\ncompensation underSection 3of the Act, the driver of the owner's\nvehicle, who was instructed to carry the passengers to a particular\ndestination, on reaching the place of destination, the driver on his own\nwent to a nearby pond and while taking his bath, he slipped and was\ndrowned, which had resulted into the death. In that case, the Hon'ble\nHigh Court had held that the insurer will not be liable to pay the\ncompensation, but rather it would be recoverable from the employer,\nunderSection 3of the Act, for the reason being that the death, which\nwas caused was not during the course of employment or because of a\ncause of accident, because it was after completing his professional\nresponsibility of taking the passengers, to a particular pre-determined16destination, the deceased has on his own had travelled to the pond,\nwhere he met with the sad demise due to drowning. Hence,in that\ncase, the Hon'ble Apex Court, was considering the principles, and\nparticularly, the terminology used under law, i.e. "arising out of" and\n"in the course of employment". Since both these aspects were not\nestablished in the facts of the said case, the Court held that the\nInsurance Company, would not be liable to pay the compensation, that\nis what has beenlaid down inpara 12 and 13 and ofthe said\njudgment, which is extracted hereunder :-"12. "5.Section 3(1)of the Act which is relevant for the\n      purpose of this case reads as follows:'3. Employer's liability for compensation.--(1) If personal\n      injury is caused to a workman by accident arising out of and in\n      the course of his employment, his employer shall be liable to\n      pay compensation in accordance with the provisions of this\n      Chapter:Provided that the employer shall not be so liable--(a) in respect of any injury which does not result in the total\n         or partial disablement of the workman for a period\n         exceeding three days;(b) in respect of any injury, not resulting in death or\n         permanent total disablement, caused by an accident which is\n         directly attributable to--(i) the workman having been at the time thereof under\n            the influence of drink or drugs, or(ii) the wilful disobedience of the workman to an\n            order expressly given, or to a rule expressly framed, for\n            the purpose of securing the safety of workmen, or(iii) the wilful removal or disregard by the workman\n            of any safety guard or other device which he knew to\n            have been provided for the purpose of securing the safety\n            of workmen.'6. UnderSection 3(1)it has to be established that there was\n   some causal connection between the death of the workman and his\n   employment. If the workman dies [a natural death because] of the\n   disease which he was suffering or while suffering from a particular\n   disease he dies of that disease as a result of wear and tear of the\n   employment, no liability would be fixed upon the employer. But if\n   the employment is a contributory cause or has accelerated the\n   death, or if the death was due not only to the disease but also the\n   disease coupled with the employment, then it can be said that the\n   death arose out of the employment and the employer would be\n   liable.177. The expression 'accident' means an untoward mishap which\n  is not expected or designed. 'Injury' means physiological injury. In\n  Fenton v. Thorley & Co. Ltd. it was observed that the expression\n  'accident' is used in the popular and ordinary sense of the word as\n  denoting an unlooked for mishap or an untoward event which is\n  not expected or designed. The above view of Lord Macnaghten\n  was qualified by the speech of Lord Haldane, L.C. in Trim Joint\n  District School Board of Management v. Kelly as follows: (AC p.676)\n         '... I think that the context shews that in using the word\n      "designed" [Lord Macnaghten] was referring to designed by the\n      sufferer.' "The above position was highlighted by this Court inJyothi\nAdemma v. Plant Engineerat SCC pp. 514-15, paras 5-7.13. "20. This Court in ESI Corpn. v. Francis De Costa4\nreferred to, with approval, the decision of Lord Wright in Dover\nNavigation Co. Ltd. v. Isabella Craig wherein it was held: (Isabella\ncase, AC p. 199)\n          '... Nothing could be simpler than the words "arising out of\n       and in the course of the employment". It is clear that there are\n       two conditions to be fulfilled. What arises "in the course" of the\n       employment is to be distinguished from what arises "out of the\n       employment". The former words relate to time conditioned by\n       reference to the man's service, the latter to causality. Not every\n       accident which occurs to a man during the time when he is on\n       his employment--that is, directly or indirectly engaged on what\n       he is employed to do--gives a claim to compensation, unless it\n       also arises out of the employment. Hence the section imports a\n       distinction which it does not define. The language is simple and\n       unqualified.'21. We are not oblivious that an accident may cause an internal\n   injury as was held in Fenton v. Thorley & Co. Ltd. by the Court of\n   Appeal: (AC p. 448)\n          '... I come, therefore, to the conclusion that the expression\n       "accident" is used in the popular and ordinary sense of the word\n       as denoting an unlooked for mishap or an untoward event\n       which is not expected or designed.'\n   Lord Lindley opined: (Fenton case, AC p. 453)\n         'The word "accident" is not a technical legal term with a\n      clearly defined meaning. Speaking generally, but with reference\n      to legal liabilities, an accident means any unintended and\n      unexpected occurrence which produces hurt or loss. But it is\n      often used to denote any unintended and unexpected loss or\n      hurt apart from its cause; and if the cause is not known the loss\n      or hurt itself would certainly be called an accident. The word\n      "accident" is also often used to denote both the cause and the\n      effect, no attempt being made to discriminate between them.\n      The great majority of what are called accidents are occasioned18by carelessness; but for legal purposes it is often important to\n    distinguish careless from other unintended and unexpected\n    events.'22. There are a large number of English and American\ndecisions, some of which have been taken note of in ESI Corpn.\ncase in regard to essential ingredients for such finding and the tests\nattracting the provisions ofSection 3of the Act. The principles are:(1) There must be a causal connection between the injury\n    and the accident and the accident and the work done in the\n    course of employment.(2) The onus is upon the applicant to show that it was the\n    work and the resulting strain which contributed to or aggravated\n    the injury.(3) If the evidence brought on records establishes a greater\n    probability which satisfies a reasonable man that the work\n    contributed to the causing of the personal injury, it would be\n    enough for the workman to succeed, but the same would\n    depend upon the fact of each case.*     *       *25. An accident may lead to death but that an accident had\ntaken place must be proved. Only because a death has taken place\nin course of employment will not amount to accident. In other\nwords, death must arise out of accident. There is no presumption\nthat an accident had occurred.26. In a case of this nature to prove that accident has taken\nplace, factors which would have to be established, inter alia, are:(1) stress and strain arising during the course of\n    employment,\n        (2) nature of employment,\n        (3) injury aggravated due to stress and strain.*     *       *31.InB.E.S.T. Undertaking v. Agnes, referring to the decision\nof the Court of Appeal in Jenkins v. Elder Dempster Lines Ltd. this\nCourt opined therein that a wider test, namely, that there should be\na nexus between accident and employment was laid down.It also\nfollowed the decision of this Court in Saurashtra Salt Mfg. Co. v.Bai Valu Raja.*      *     *33.InMackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim\nMahmmed Issak9this Court held: (SCC p. 611, para 5)\n        '5. To come within the Act the injury by accident must arise\n    both out of and in the course of employment. The words "in the\n    course of the employment" mean "in the course of the work\n    which the workman is employed to do and which is incidental\n    to it". The words "arising out of employment" are understood to\n    mean that "during the course of the employment, injury has\n    resulted from some risk incidental to the duties of the service,\n    which, unless engaged in the duty owing to the master, it is19reasonable to believe the workman would not otherwise have\n      suffered". In other words there must be a causal relationship\n      between the accident and the employment. The expression\n      "arising out of employment" is again not confined to the mere\n      nature of the employment. The expression applies to\n      employment as such--to its nature, its conditions, its\n      obligations and its incidents. If by reason of any of those factors\n      the workman is brought within the zone of special danger the\n      injury would be one which arises "out of employment". To put\n      it differently if the accident had occurred on account of a risk\n      which is an incident of the employment, the claim for\n      compensation must succeed, unless of course the workman has\n      exposed himself to an added peril by his own imprudent act.' "28.          In the aforesaid judgment, yet again, the Hon'ble Apex\nCourt has reiterated the fact that for a claimant to be made entitled for\nthe payment of the compensation, it is his burden which was\nmandatorily required to be discharged, that there is a casual\nconnection of the "injury" and the "accident", during the "course of\nemployment", and the onus to establish the same has to be discharged\nby the claimant, which was not performed in the instant case and\nhence, the Insurance Company could not be made liable to pay the\ncompensation, as it has been determined by the impugned award dated\n27.07.2015, under challenge.      Also for the reason being that the\nclaimants or the owner, had not been able to prove either by pleadings\nor by way of any evidence on record or even in their oral testimony,\nthat, even the theory of stress is to be brought within the ambit of an\naccident, for the purposes of applying a welfare legislation, it was\nperhaps their burden, which was to be discharged to show, that while\nperforming an official duty, there was an aggravation of stress on\naccount of work, which has contributed to the accident.29.          Hence, it was held that the sudden and unexpected\nincident, which chances resulting into the death, cannot always be\ninvariably made applicable in all circumstances, be treated as to be an\naccident, which could be related to have chanced during the course of\nemployment because there are certain events, which chances even20beyond the course of employment, as it has happened in the instant\ncase also.30.             Yet, another judgment, on which the reference has been\nmade , by the appellant's Counsel is that reported in 1992 (1) TAC206.      Primarily, this judgment, it was on the backdrop that the\nemployee, whose dependents have claimed a compensation, had\ncontended in pleadings that the death in the said case was caused on\naccount of stress and hence, they would be entitled for the\ncompensation, but since the factum of stress, being always attributable\nto the nature of employment, was not proved to be established, the\nburden of which was required to be discharged by the claimants, the\namount of compensation was not liable to be paid, by the appellant\nInsurance Company.31.In yet, another judgment reported in 2007 (11) SCC 668,\nShakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali\nand another, this was a case, yet again, where a person died because\nof the heart attack, wherein, the Hon'ble Apex Court has held that,\nthat in itself exclusively cannot result into an automatic resumption\nthat the same was caused by an accident. The said judgement of the\nHon'ble Apex Court has quite elaborately had dealt with the said fact\nin its para 15, 16, 19, 20, 22, 23, 25, 26 and 28.           The same are\nextracted hereunder :-"15. The said Act was enacted to provide for payment by\n      certain classes of employers to workmen for compensation against\n      injury by accident. The term "accidental injury" has not been\n      defined under the Act. The liability of the employer for payment of\n      compensation, however, would arise if a personal injury is caused\n      to a workman by accident arising out of and in the course of his\n      employment. What is necessary for attracting the charging\n      provision contained inSection 3of the Act is that (i) an injury must\n      be caused to a workman; (ii) such injury must have been caused by\n      an accident; and (iii) it arose out of or in the course of his\n      employment.16. Before we analyse the provisions of the Act, we may notice\n      that in the claim petition, there was no allegation that (i) the\n      deceased met with his death by reason of any strain of work; (ii)21appellant had no personal knowledge as regards quantum of or\nnature of work required to be performed by the deceased; and (iii)\nas to how severe strain during his service was caused.19. Sufferance of heart disease amongst young persons is not\nunknown. A disease of heart may remain undetected. A person may\nsuffer mild heart attack but he may not feel any pain. There must,\nthus, be some evidence that the employment contributed to the\ndeath of the deceased. It is required to be established that the\ndeath occurred during the course of employment.20. This Court in ESI Corpn. referred to, with approval, the\ndecision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella\nCraig3 wherein it was held: (All ER p. 563 G-H)\n       "Nothing could be simpler than the words 'arising out of\n   and in the course of the employment'. It is clear that there are\n   two conditions to be fulfilled. What arises 'in the course' of the\n   employment is to be distinguished from what arises 'out of the\n   employment'. The former words relate to time conditioned by\n   reference to the man's service, the latter to causality. Not every\n   accident which occurs to a man during the time when he is on\n   his employment--that is, directly or indirectly engaged on what\n   he is employed to do--gives a claim to compensation, unless it\n   also arises out of the employment. Hence the section imports a\n   distinction which it does not define. The language is simple and\n   unqualified."22. There are a large number of English and American\ndecisions, some of which have been taken note of in ESI Corpn. in\nregard to essential ingredients for such finding and the tests\nattracting the provisions ofSection 3of the Act. The principles\nare:(1) There must be a causal connection between the injury\n    and the accident and the accident and the work done in the\n    course of employment.(2) The onus is upon the applicant to show that it was the\n    work and the resulting strain which contributed to or\n    aggravated the injury.(3) If the evidence brought on records establishes a greater\n    probability which satisfies a reasonable man that the work\n    contributed to the causing of the personal injury, it would be\n    enough for the workman to succeed, but the same would depend\n    upon the fact of each case.23. Injury suffered should be a physiological injury. Accident,\nordinarily, would have to be understood as unforeseen or\nuncomprehended or could not be foreseen or comprehended. A\nfinding of fact, thus, has to be arrived at, inter alia, having regard\nto the nature of the work and the situation in which the deceased\nwas placed.2225. An accident may lead to death but that an accident had\n      taken place must be proved. Only because a death has taken place\n      in course of employment will not amount to accident. In other\n      words, death must arise out of accident. There is no presumption\n      that an accident had occurred.26. In a case of this nature to prove that accident has taken\n      place, factors which would have to be established, inter alia, are:(1) stress and strain arising during the course of\n         employment,\n             (2) nature of employment,\n             (3) injury aggravated due to stress and strain.28. Only because a person dies of heart attack, the same does\n      not give rise to automatic presumption that the same was by way of\n      accident. A person may be suffering from a heart disease although\n      he may not be aware of the same. Medical opinion will be of\n      relevance providing guidance to court in this behalf."32.In a nutshell, if the principles, which had been laid down\nby the Hon'ble Apex Court, in the aforesaid judgment ofShakuntala\nChandrakant Shreshti(Supra), are taken into consideration, a\ndistinction has been made out therein, that since in the absence of\naccidental injury or accidental death, has not been defined under the\nAct, the liability of the employer from the payment of the\ncompensation, would however still arise if a personal injury is caused\nor workmen dies during the course of employment.In fact, while\nconsidering the implications drawn from a judgment reported in 1940\nAC 190, Dover Navigation Co. Ltd. Vs. Isabella Craig. In the said\njudgment, which was reported from the All Indian Reporter, it had\ndealt with, as to what would be the "course of employment",\nwherein, it has been held that it has to be distinguished from the\nwords, "arising out of the employment", because the word relates to\nthe condition, by reference to a man's service and the subsequent, part\nfrom it, deals with causality.Hence, being merely in the course of\nemployment, if an incident changes resulting into the death, it may not\nalways be universally said that it was arising out of an employment\nand since, as already observed above, in the instant case, it was not\narising out of the employment, the compensation cannot be said to be\nfallen with in its specific definition, which yet again has been dealt23with by the Hon'ble Apex Court, in an another judgment reported in\n(1969) 2 SCC 607, Makinnon Mackenzie & Co. (P) Ltd. Vs.\nIbrahim Mohd. Issak. Para 5 of the same is extracted hereunder :-""5. To come within the Act the injury by accident\n      must arise both out of and in the course of employment. The\n      words 'in the course of the employment' mean 'in the course of\n      the work which the workman is employed to do and which is\n      incidental to it'. The words 'arising out of employment' are\n      understood to mean that 'during the course of the employment,\n      injury has resulted from some risk incidental to the duties of the\n      service, which, unless engaged in the duty owing to the master,\n      it is reasonable to believe the workman would not otherwise\n      have suffered'. In other words there must be a causal\n      relationship between the accident and the employment. The\n      expression 'arising out of employment' is again not confined to\n      the mere nature of the employment. The expression applies to\n      employment as such--to its nature, its conditions, its\n      obligations and its incidents. If by reason of any of those\n      factors the workman is brought within the zone of special\n      danger the injury would be one which arises 'out of\n      employment'. To put it differently if the accident had occurred\n      on account of a risk which is an incident of the employment, the\n      claim for compensation must succeed, unless of course the\n      workman has exposed himself to an added peril by his own\n      imprudent act.""33.          In which, the Hon'ble Apex Court has laid down that on\nthe basis of the principles, which has been laid in the judgment\nreported in 1914 AC 667, Trim Joint District School Board of\nManagement Vs. Kelly, in All Indian Reporter, it has been observed\nthat accident means an untoward mis-happening, which is not\nexpected or designed or planned and known to the human being, or\nthe injuries, which means a psychological injuries too, there it has\nbeen held that the expression accident, in a popular and ordinary sense\nof word as denoting a mishap, which was not expected and invariably\nthe said principle of mishap cannot be universally made applicable,\nunder all the set of circumstances of the each case, which may be\ndistinguishable under the facts of the said case.34.          In one of the recent judgments which has been rendered\nby the Hon'ble Apex Court in Civil Appeal No. 1836 of 2020,24Poonam Devi and others Vs. Oriental Insurance Co. Ltd., it was a\ncase, yet again, where a driver of a truck TATA 407, after parking the\nvehicle, had went to river Yamuna to fetch water for bath, he slipped\nand got drowned in the canal and ultimately died. The Hon'ble Apex\nCourt in para 2, 3, 7, 8 and 11 of the said judgement has held, which is\nextracted hereunder :-"2. The deceased was aged 21 years, in the employment\n      of respondent no.2 (since deleted), and was driving her TATA\n      407 vehicle bearing registration No.UP 15P 1689 on\n      11.06.2003 from Ambala to Meerut, a distance of\n      approximately 200 Kms. At about 12.30 PM, when he\n      approached the bridge near village Fatehpur, the deceased went\n      to the Yamuna canal to fetch water and also to have a bath.\n      Unfortunately, he slipped into the canal and died. The vehicle\n      was insured with the respondent Insurance Company. P.W.2,\n      who was standing near the bridge, deposed that the deceased\n      had gone to fetch water in a can along with the cleaner who\n      tried to save him, but both slipped into the canal. The\n      Workmen's Compensation Commissioner by order dated\n      12.12.2005 allowed the claim as aforesaid.3. The High Court in appeal by the Insurance Company\n      held that the deceased may have died during the course of the\n      employment but death did not arise out of the employment, as\n      bathing in the canal was not incidental to the employment but\n      was at the peril of the workman. There was no casual\n      connection between the death of the workman and his\n      employment. He had gone to fetch water for personal\n      consumption and it was not his case that the truck was over\n      heated.7.The Workmen's Compensation Act, 1923(now\n      christened as "Employee's Compensation Act, 1923") is a piece\n      of socially beneficial legislation. The provisions will therefore\n      have to be interpreted in a manner to advance the purpose of the\n      legislation, rather than to stultify it. In case of a direct conflict,\n      when no reconciliation is possible, the statutory provision will\n      prevail only then.8. Relevant to the discussion isSection 3of the Act. The\n      relevant extract reads as follows:"3. Employer' s liability for compensation. (1) If\n             personal injury is caused to a workman by accident25arising out of and in the course of his employment, his\n      employer shall be liable to pay compensation in\n      accordance with the provisions of this Chapter:XXXX"11. Coming to the facts of the present case, the deceased\nwas driving the truck of respondent no.2 from Ambala to\nMeerut. Indisputably he was in the course of his employment.\nWe can take judicial notice of the fact that considering the\nmanufacturer's specification, the cabin of the truck was not air\nconditioned and would have been a baking oven in the middle\nof the afternoon in the sultry monsoon heat of June 2003, when\nthe temperature was touching 42.60C in Yamunagar (Haryana)\n(source: weatheronline.in). It was a compulsion for the\ndeceased to stay fresh and alert not only to protect the truck of\nrespondent no.2 from damage but also to ensure a smooth\njourney and protect his own life by safe driving. We can also\ntake judicial notice of the fact that the possibility of the truck\nalso requiring water to prevent overheating cannot be\ncompletely ruled out.In these circumstances, can it be said that\nthe act of the deceased in going to the canal to fetch water in a\ncan for the truck and to refresh himself by a bath before\ncontinuing the journey was not incidental to the employment?\nEvery action of the driver of a truck to ensure the safety of the\ntruck belonging to the employer and to ensure his own safety by\na safe journey for himself has to be considered as incidental to\nthe employment by extension of the notional employment\ntheory. A truck driver who would not keep himself fresh to\ndrive in such heat would be a potential danger to others on the\nroad by reason of any bonafide errors of judgement by reason\nof the heat. The theory of notional extension noticed in theAgnes(supra) and followed in Leela Bai (supra) is extracted\nhereunder:"9.In the facts of the present case and the nature of\n      evidence, there was a clear nexus between the accident\n      and the employment to apply the doctrine of "notional\n      extension" of the employment considered inAgnes(supra) as follows: "...It is now wellsettled, however,\n      that this is subject to the theory of notional extension of\n      the employer's premises so as to include an area which\n      the workman passes and repasses in going to and in\n      leaving the actual place of work. There may be some\n      reasonable extension in both time and place and a\n      workman may be regarded as in the course of his\n      employment even though he had not reached or had left\n      his employer's premises. The facts and circumstances of\n      each case will have to be examined very carefully in\n      order to determine whether the accident arose out of and\n      in the course of the employment of a workman, keeping\n      in view at all time this theory of notional extension."2635.           There in the said ratio, it was held that the said nature of\nthe accident, will not be exclusively treated as to be an accident,\narising during the course of employment and, hence, the heirs of the\ndeceased were held to be entitled for the benefit from the employer\nhimself underSection 3of the Act.36.           Hence, on overall scrutiny of the factual backdrop of the\npresent case, and particularly in the light of the judgments referred to\nhereinabove, this Court is of the opinion that the cause of death of late\nMr. Shankar Singh, when he suffered a heart stroke, though it was\nadmittedly caused during the course of employment, which is a fact\nadmitted to the parties to the proceedings, but one of the basic\nimportant elements, which was required to be satisfied and proved,\nwhether it was as a result of an accident, since it was missing to be\nestablished, the cause of death of the deceased will not amount to be\nan accident, during the course of employment nor it would be treated\nas to be a death caused on account of the stress of work, because there\nwas a sufficient time gap between the date and time of the incident\nand the alleged theory of stress of work (though not proved). Hence,\nthe liability of the payment of compensation would be exclusively\nvested on the employer with whom the deceased was employed and\nnot on the Insurance Company, in the light of the provisions contained\nunder theInsurance Act.37.           Hence, the Appeal stands allowed qua the appellant only.\nHowever, the employer of the bus in question, i.e. respondent No. 2,\nherein, is directed to pay the amount of compensation as it had been\ndetermined.     However, the said amount would be paid by the\nInsurance Company, to the claimants and would be recovered from\nthe employer/respondent No. 2.38.           Subject to the above conditions, the Appeal from Order\nstands allowed. The impugned award is quashed qua the Insurance27Company and modified so far it relates to the owner of the vehicle, i.e.\nrespondent No.2, herein.(Sharad Kumar Sharma, J.)\n                                                17.08.2021\nShiv