Prafulla C. Pant, J.
1. This appeal preferred under Section 30 of the Workmen's Compensation Act, 1923 is directed against the judgment and order dated 31.8.2005, passed by the Workmen's Compensation Commissioner/Assistant Labour Commissioner, Kumaon Division, Haldwani, Distt. Nainital in W.C.C. No. 79 of 2002, whereby the amount of Rs. 4,30,480 (including the interest) is awarded in favour of the claimants-respondent Nos. 1 and 2.
2. Heard learned Counsel for the parties and perused the record.
3. Brief facts of the case are that an application was moved by the claimants Kailash Chandra Pandey and Godawari Pandey (present respondent Nos. 1 and 2), parents of the deceased before the Commissioner for Workmen's Compensation, alleging that respondent Dhananjay Datt Pandey is owner of vehicle bearing registration No. UAB 4056. Basant Ballabh Pandey (deceased), son of the claimants, was the driver in said vehicle. It is alleged by claimants that deceased was employee of respondent Dhananjay Datt Pandey, who used to pay him Rs. 3,500 per month as salary apart from diet money, etc. Age of the deceased was 24 years. On 9.9.2001, Basant Ballabh Pandey while working as a driver of the aforesaid vehicle developed chest pain. He was rushed to the Sheel Hospital, Bareilly for treatment. However, he died on 12.9.2001. It is alleged that the deceased died of cardio-respiratory failure. It is further alleged in claim petition that vehicle bearing registration No. UAB 4056 was insured with United India Insurance Co. Ltd. (present appellant) under cover note No. 12075 on the day when Basant Ballabh Pandey died. The policy was valid for the period 5.5.2001 to 4.5.2002.
4. Claim petition was contested by the insurance company before the Commissioner, Workmen's Compensation alleging that the claim is false. The Commissioner recorded the evidence of the parties. Respondent Dhananjay Datt Pandey admitted that Basant Ballabh Pandey was driver in his vehicle No. UAB 4056. The learned Commissioner, Workmen's Compensation-cum-Assistant Commissioner, Labour after recording the evidence and hearing the parties, assessed the salary of the deceased at Rs. 2,700 per month and awarded compensation to the tune of Rs. 2,94,934 with 12 per cent interest thereon, which amounted to Rs. 1,35,546. As such, the claim has been awarded for total sum of Rs. 4,30,480 against the insurance company. Aggrieved by the said judgment and the order dated 31.8.2005, passed in W.C.C. No. 79 of 2002, this appeal is preferred by United India Insurance Co. Ltd.
5. Before further discussions, it is pertinent to mention here the relevant provisions of law applicable to the present case. Sub-section (1) and Sub-section (2) of Section 3 of Workmen's Compensation Act, 1923, reads as under:
3. Employer's liability for compensation.-(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to-
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.
(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment:
Provided that if it is proved.-
(a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment; and
(b) that the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section:
Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.
6. Admittedly, Basant Ballabh Pandey (deceased) has not died due to the accident or due to the injuries suffered by him during the course of employment. In the claim petition itself it is mentioned that he developed chest pain and died in the hospital due to the cardio-respiratory failure. Neither the said cause of death is covered by Sub-section (1) of Section 3 quoted above (as there is no injury suffered in the accident) nor the death is covered by provision contained in Sub-section (2) of Section 3, mentioned above, as the disease by which the deceased has died is not covered under Part A of Schedule III or Part B of Schedule III. From evidence on record, it is evident that Basant Ballabh Pandey, the driver has died a natural death and not because of work done for the employer. In such circumstances, the death cannot be said to be covered by the cover note No. 12075, which pertains to the vehicle No. UAB 4056, owned by respondent Dhananjay Datt Pandey (employer) for the period 5.5.2001 to 4.5.2002.
7. The Hon'ble Apex Court in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali MANU/SC/8649/2006 : AIR2007SC248 , in the similar circumstances, has held that unless and until evidence is brought on the record to elaborate that death by way of cardiac arrest has occurred because of stress or strain, Commissioner has no jurisdiction to grant compensation under Workmen's Compensation Act, 1923. In the present case it is nowhere proved that the chest pain developed by the deceased had any relation to stress and strain in the employment due to the working condition or the work done for the employer. Similar view has been expressed by Apex Court also in Jyothi Ademma v. Plant Engineer, Nellore Thermal Station MANU/SC/3328/2006 : (2006)IIILLJ324SC , regarding a case of death due to heart attack which has not been established that it occurred due to stress and strain during course of employment.
8. For the reasons as discussed above, the compensation awarded by the Commissioner, Workmen's Compensation against the insurance company, is liable to be set aside. Therefore, the appeal is allowed. The impugned judgment and order dated 31.8.2005, passed in W.C.C. No. 79 of 2002 is set aside. Amount, if any, already paid to the claimants shall be liable to be refunded back to the insurance company. The appeal stands allowed. No order as to costs.