JUDGMENT : V.V.S. Rao, J. 1. Challenge in this appeal the Commissioner for Workmen's Corn-is to the order dated 20.3.2002 passed by pensation and Assistant Commissioner of Labour-I Circle (hereinafter called, 'the Commissioner'), Guntur. By the impugned award, the Commissioner awarded a sum of Rs. 2,48,883/- to respondent Nos. 1 to 3, who are the legal heirs/dependants of the deceased workman Alahari Venkaiah. The challenge is mainly on the ground that the death of the workman did not occur during the course of employment and that he died of heart attack. Therefore, the interesting point that would arise for consideration is whether a workman who dies of heart attack and some other fatal adverse health condition can be said to have died during the course of employment. 2. Venkaiah was a driver of the lorry bearing No. AP 21-T 4456 working with respondent No. 4 herein (employer), owner of the lorry. On 3.5.2001 when the workman was on duty he died of heart attack at Cuttack. He was aged 45 years and statedly was earning Rs. 3,000 per month. After his death, his wife and two sons filed W.C. Case No. 102 of 2001 claiming Rs. 3,00,000/- as compensation. O.P. was opposed by the insurer (appellant herein), inter alia, raising the plea as noticed hereinabove. The Commissioner relied upon the decision of the Gujarat High Court in Oriental Fire and General Insurance Co. Ltd. Vs. Sunderbai Ramji and Another, (1992) ACJ 907 :, as well as the decision of this court in Depot Manager, APSRTC, Karimnagar Vs. Gurrapu Anjamma, (1999) 5 ALT 684 and awarded the compensation. 3. This court heard the learned counsel for the appellant insurer who relied upon The Superintending Engineer, Maharashtra State Electricity Board, The Executive Engineer, Maharashtra State Electricity Board (O and M), Rural Division and The Assistant Engineer, Maharashtra State Electricity Board (O and M), Sub-Division Vs. Smt. Susheela V. Dhongade and Others, (2005) ACJ 1024 ;Jyothi Ademma Vs. Plant Engineer, Nellore and Another, (2006) 5 SCC 513 : (2006) SCC(L&S) 1166 in support of the contention that in the absence of any proof that deceased workman suffered fatal heart attack due to stress at the workplace, the insurance company cannot be made liable to pay the compensation to the workman who dies of heart attack. 4. Learned counsel for the claimants (respondent Nos. 1 to 3 herein) made the following submissions. 4. Learned counsel for the claimants (respondent Nos. 1 to 3 herein) made the following submissions. When a driver of the lorry dies of heart attack while performing duties it should be inferred that such heart attack occurred due to stress and strain in the performance of duties in the course of employment. Nextly, he contends that when workman discharged duty and has a stress and strain of the work, the work itself becomes contributory cause for heart attack and, therefore, insurance company would be liable to pay the amount. He submits that the deceased workman was continuously on duty for ten to fifteen days without break and this resulted in stress. For this purpose he relies on evidence of AW 2 and argues that this court should infer the work as a contributory cause, which accelerated heart attack. 5. Section 3 of the Workmen's Compensation Act, 1923 ('the Act', for brevity), makes the employer liable for compensation. It contains five sub-sections. Sub-sections (1), (2) and (2-A) are substantive provisions and sub-sections (3) to (5) are procedural in nature. Sub-section (1) of section 3 of the Act makes the employer liable for compensation if personal injury is caused to workman by accident 'arising out of and in the course of employment'. Exception to this general rule is contained in proviso (a) and (b) to sub-section (1). As per proviso (a) if the injury does not result in the total or partial disablement of the workman for a period exceeding three days, employer is not liable to pay the compensation and as per proviso (b), in respect of any injury or permanent total disablement (not being death) caused by an accident which is directly attributable to workman or as a result of wilful disobedience of the workman or as a result of wilful removal or disregard by the workman (sic of any safety guard), the employer is not liable. Section 3 (2) of the Act contains deeming provision with reference to occupational diseases in any employment specified in Part A of Schedule III of the Act, diseases contracted in any employment specified in Part B of Schedule III or diseases contracted in respect of any other employment. Injuries sustained or suffered due to these diseases shall be deemed to be an injury in the course of employment. 6. Injuries sustained or suffered due to these diseases shall be deemed to be an injury in the course of employment. 6. In the case on hand Venkaiah did not suffer such deemed injury by accident because motor industry is not one such employment referred to in section 3 (2) of the Act. Therefore, necessarily it has to fall u/s 3 (1) of the Act, which means that the claimants have to prove that Venkaiah suffered heart attack during the course of employment. 7. Two witnesses have been examined by the claimants. AW 1 is the wife of the deceased workman. She deposed that her husband died at Cuttack on 3.5.2001 at about 2.55 a.m. due to heart attack. She also deposed that Venkaiah was proceeding from Bihar to Tenali with a load of bananas. When Venkaiah suffered heart attack, the cleaner, AW 2, admitted him in Government Hospital, Cuttack. One hour thereafter, Venkaiah had died and the dead body was brought by the cleaner. She also deposed that Venkaiah used to go on long trips and due to stress and strain he suffered heart attack. In cross-examination she admitted that her husband did not die in any traffic accident and he died of natural death. Evidence of AW 1 is not reliable because she was not present at Cuttack and she only came to know about the information through AW 2 who brought the dead body in a taxi. AW 2 is the cleaner of the lorry who was working along with Venkaiah. While corroborating that lorry was proceeding from Bihar to Tenali with load of bananas he deposed that Venkaiah felt chest pain at Cuttack while he was in the vehicle around 1.30 a.m. AW 2 took him to hospital in auto rickshaw where he died and he took the body to Tenali. 8. Therefore, from this evidence it is not possible to infer that the heart attack was triggered due to stress and strain. Admittedly, Venkaiah was aged about 45 years and he was working as a lorry driver for more than three years. It is also not the case of the claimants that Venkaiah complained of stress and strain due to his long trips at a stretch for a period over and above a week or ten days. Admittedly, Venkaiah was aged about 45 years and he was working as a lorry driver for more than three years. It is also not the case of the claimants that Venkaiah complained of stress and strain due to his long trips at a stretch for a period over and above a week or ten days. In these circumstances, it is not possible to connect the employment as a driver with the heart attack which could have resulted from stress and strain. 9. In Butterworths Medical Dictionary, 2nd Edn., 'heart failure' is explained as the clinical condition caused by the failure of the heart to maintain an output of blood appropriate to the demands of the body and to the prevailing conditions affecting the cardiac performance. 'Acute heart failure' is described as sudden failure of heart action, commonly caused by coronary thrombosis and often fatal. 'Chronic heart failure' is explained as persisting insufficiency of the circulation usually applied to congestive heart failure but also to left side heart failure. 10. Unless evidence is let in to show that Venkaiah suffered heart attack due to continuous driving of the vehicle going from Bihar to Tenali it is not possible to come to such conclusion. Furthermore, there is no evidence to show that as to when the lorry with load of bananas started from Bihar and how long prior to reaching Cuttack, the lorry was driven. There is also no evidence to show that whether there was a second driver available in the lorry. In a case of this nature, when there is no clear evidence, what are the principles to be applied vis-a-vis section 3 (1) of the Act. 11. In The Superintending Engineer, Maharashtra State Electricity Board, The Executive Engineer, Maharashtra State Electricity Board (O and M), Rural Division and The Assistant Engineer, Maharashtra State Electricity Board (O and M), Sub-Division Vs. Smt. Susheela V. Dhongade and Others, (2005) ACJ 1024, Bombay High Court considered that the workman in Maharashtra State Electricity Board had suffered heart attack in the office premises and he died on 26.5.1989 when he was served with an order of transfer. His legal heirs filed application under the Act. It was partly allowed. An amount of Rs. 67,776 was awarded. Aggrieved by the order, Superintending Engineer (SE) preferred an appeal before the High Court of Bombay. His legal heirs filed application under the Act. It was partly allowed. An amount of Rs. 67,776 was awarded. Aggrieved by the order, Superintending Engineer (SE) preferred an appeal before the High Court of Bombay. It was, inter alia, contended that death of the deceased was not as a result of accident arising out of and during the course of employment and, therefore, there is no liability, especially, when there is no evidence on record to demonstrate that there was any causal connection between death and employment of the deceased. Referring to the case of Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak 1969 ACJ 422 (SC), Bombay High Court explained the principles to be followed by the Commissioner while considering such a case in the following terms: (6) In the case of Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak, 1969 ACJ 422 (SC), the Apex Court held that the burden of proof rests on the workman to prove that death was caused on account of employment as well as in the course of employment. The Apex Court has observed that the evidence need not be direct but can be inferred when the facts proved justify the inference. However, at the same time, the Commissioner must not surmise, conjecture or guess but draw an inference from the proved facts, so long as it is a legitimate inference. The Supreme Court has observed that for the injury or death to fall within the purview of the Act, the death or accident must arise out of and in the course of employment. The Supreme Court has held if the accident occurs on account of a risk which is an incident of employment, the claim for compensation should succeed unless the workman has exposed himself to such risk by his own imprudent act. The Commissioner must consider (i) whether accident arose out of the course of employment; and (ii) whether it arose during the course of employment. In the present case, the Commissioner has not considered whether there is an accident or death arising out of employment. What weighed with the Commissioner was that death occurred at the place of employment and, therefore, during the course of employment. Whether the first ingredient was fulfilled has not been considered by the Commissioner. 12. In Jyothi Ademma Vs. In the present case, the Commissioner has not considered whether there is an accident or death arising out of employment. What weighed with the Commissioner was that death occurred at the place of employment and, therefore, during the course of employment. Whether the first ingredient was fulfilled has not been considered by the Commissioner. 12. In Jyothi Ademma Vs. Plant Engineer, Nellore and Another, (2006) ACJ 2165 : AIR 2006 SC 2830 : (2006) 110 FLR 776 : (2006) 6 JT 300 : (2006) 3 LLJ 324 : (2006) 7 SCALE 28 : (2006) 5 SCC 513 : (2006) SCC(L&S) 1166 : (2006) 3 SCR 400 Supp : (2006) 2 UJ 1062 : (2006) AIRSCW 3949 : (2006) 5 Supreme 427 , the appellant's husband who was working in Nellore Thermal Station died of heart attack. She filed claim for Rs. 1,00,000/- alleging that her husband died due to stress and strain closely linked with the employment of the workman and, therefore, death arose out of employment. Commissioner awarded compensation and the High Court reversed the said order holding that there was no injury as such and workman died due to heart attack at the work spot. High Court also found that nature of the job, which the workman was doing, could not have caused stress and strain. Supreme Court affirmed the findings of the High Court and made the following observations: (7) The expression 'accident' means an untoward mishap which is not expected or designed. 'Injury' means physiological injury. In Fenton v. Thorley and Co. Ltd., (1903) AC 443, it was observed that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C., in Trim Joint District School Board of Management v. Kelly, (1914) AC 676, as follows: 'I think that the context shows that in using the word "designed", Lord Macnaghten was referring to designed by the sufferer.' (8) But in the present case, it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded, the High Court's judgment does not suffer from any infirmity. 13. The last case to be considered is that of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and Another, (2007) 11 SCC 668 In this case Supreme Court after analysing provisions of the Act explained the law in paras 22 to 29 of ACJ judgment, which read as under: (22) There are a large number of English and American decisions, some of which have been taken note of in Employees ' State Insurance Corporation v. Francis De Costa 1996 ACJ 1281 (SC), 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 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 record 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 facts of each case. (23) Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or un-comprehended 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. (24) 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. (25) An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in the course of employment will not amount to accident. If a finding is arrived at without pleading or legal evidence, the statutory authority will commit a jurisdictional error while exercising jurisdiction. (25) An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in the 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. (26) 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; and (3) injury aggravated due to stress and strain. (27) The deceased was travelling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous. (28) 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. (29) Circumstances must exist to establish that death caused by 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 the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion, therefore, would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor. 14. From the three judgments referred to hereinabove, when a workman dies of heart attack or chest pain, the claimants have to plead and establish by acceptable evidence that employment related stress and strain had triggered or aggravated the heart attack. If the workman had history of heart disease earlier or was made to work beyond prescribed standards with regard to time and quantity of work there could be relationship between employment and stress but it has to be proved by producing cogent and convincing evidence. Mere allegation that workman suffered stress and strain which resulted in heart attack would not be sufficient. Mere allegation that workman suffered stress and strain which resulted in heart attack would not be sufficient. The nature of employment, the duties performed by the workman, the duty hours, the onerous nature of the job, etc., are all factors which need to be considered by the Commissioner for Workmen's Compensation. On a mere allegation that the workman died of heart attack due to stress and strain or the long hours of employment would not be sufficient. In this case as noticed supra, no evidence was let in by the claimants and, therefore, the appeal must succeed. 15. The civil miscellaneous appeal is accordingly allowed. If any amount is paid to claimants, it shall not be recovered from them and it shall be open to the insurer to recover the same from the owner of lorry. No costs.