JUDGMENT This appeal, under Section 30 of Workmen’s Compensation Act, 1923, has been preferred by Oriental Insurance Co. Ltd. i.e. insurer of offending vehicle no. U.A. 04A/6622, against the judgment and order dated 22-12-2006, as amended by order dated 06-01-2007, passed by Commissioner Workmen’s Compensation/Assistant Labour Commissioner, Uttaranchal at Haldwani, Nainital in W.C.A. No. 9 of 2005, Smt. Champa Devi versus Sri Devendra Kumar Pandey and another. 2. Brief facts of the case according to the claimant, are that Jai Dutt Joshi, husband of the claimant, was employed as driver on vehicle no. U.A.04-6622 owned by opposite party no. 1 and he died on 7-12-2004 during the course of employment. The deceased was 35 years of age at the time of accident and used to get Rs.3000/- per month as salary by working as driver. The claimant claimed a sum of Rs.3,00,000/- as compensation along with interest of 12% per annum from the date of accident till the date of payment. 3. Opposite party no. 1 owner of vehicle contested the claim petition by filing his written statement. He has admitted the fact that he had employed the deceased- Jai Dutt Joshi as driver on his vehicle i.e. Bus No. U.A. 04-6622. He has also admitted the factum of death of deceased in the accident as well as factum of salary of deceased as Rs. 3000/- per month. It has also been admitted that on the date of accident all the papers of vehicle in question were valid and vehicle was insured. 4. Opposite party no. 2 insurer of vehicle filed its written statement admitting the factum of insurance of vehicle with it and opposed the claim petition on technical ground only. 5. The Workmen’s Compensation Commissioner having considered the entire material evidence available on record and hearing learned counsel for the parties directed that the insurance company shall pay a sum of Rs.3,36,520/- to the claimant, vide judgment and order dated 22-12-2006. 6. Feeling aggrieved by the aforesaid impugned judgment and award, the insurer of vehicle has preferred the present appeal before this Court. 7. Heard Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri Kailash Tiwari, learned brief holder for respondent no. 1, Sri Ajay Singh Bisht, learned counsel for claimant-respondent no. 2 and perused the record. None has appeared on behalf of respondent no. 7. Heard Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri Kailash Tiwari, learned brief holder for respondent no. 1, Sri Ajay Singh Bisht, learned counsel for claimant-respondent no. 2 and perused the record. None has appeared on behalf of respondent no. 3- owner of vehicle inspite of sufficient service of notice, although name of Sri Pradeep Hairiya, Advocate find place in the cause-list on behalf of owner of vehicle. 8. The only question which arises for consideration in this appeal is as to whether the Workmen’s Compensation Commissioner is justified in holding that insurer of vehicle would be liable to pay the amount of compensation awarded for the reason that the deceased died during course of employment. The evidence on record shows that the deceased was employed as a driver in Bus No. U.A.04/6622. The death of the deceased occurred in the night of 7/8-12-2004. The deceased along with bus reached Haldwani from Almora on 7-12-2004 and he stationed the bus near P.W.D. Guest House at Haldwani. It is the case of claimant that the deceased slept inside the bus in the intervening night of 7/8-12-2004 dead body of the deceased was recovered from the canal at Tikonia. The report was lodged on 8-12-2004 at P.S. Haldwani. The case of the claimant is that the deceased died during course of employment and the Workmen’s Compensation Commissioner also held that deceased died during course of employment, hence insurance company is liable to make the payment of compensation to the claimant. 9. I fail to understand that how the claimant could establish in the instant case that death of the deceased occurred in the course of employment. There is no evidence that the employment contributed to death in the instant case. It is not clear as to how dead body of the deceased was found in the canal on the next day. It is also not the case of either party how the deceased could come out from the bus in the night and then his body was found in the canal on the next day. It is also not the case of the claimant that the deceased met with an accident in the intervening night of 7/8-12-2004 and on account of that accident his body was found in the canal on the next day. It is also not the case of the claimant that the deceased met with an accident in the intervening night of 7/8-12-2004 and on account of that accident his body was found in the canal on the next day. The deceased came out from the bus at his own and without any instruction of the owner of the vehicle as there is no evidence to this effect that there was the instruction by the owner of vehicle for the deceased to come out from the vehicle in the night and go to some place. Only because death occurred in course of employment will not amount to accident. The Hon’ble Apex Court in the case of Shakuntala Chandrakant Shreshti versus Prabhakar Maruti Garvali & another, reported in IV (2006) ACC 769 (SC) has held as under : “16. The said Act was enacted to provide for payment by certain classes of employers to workmen for compensation against injury by accident. The term ‘accident injury’ has not been defined under the Act. The liability of the employer for payment of compensation, however, would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. What is necessary for attracting the charging provision contained in Section 3 of the Act is that, (i) an injury must be caused to a workman; (ii) such injury must have been caused by an accident; and (iii) it arose out of or in the course of his employment. 35. In Mackinnin Mackenzie & Co. (P) Ltd. V. Ibrahim Mohammad Issak, AIR 1970 SC 1906, this Court held : “5. … To come within the Act the injury by accident must arise both out of and in the course of employment. The words in the course of the employment mean it the course of the work which the workmen is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words there must be a casual relationship between the accident and the employment. In other words there must be a casual relationship between the accident and the employment. The expression arising out of employment is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.” 10. The Hon’ble Apex Court in another case Malikaarjuna G. Hiremath versus Branch Manager, Oriental Insurance Co. Ltd. and another, reported in 2009 (2) T.A.C. (S.C.) has held as under: “14. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in 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. 19. It is the specific case of the claimants that on 30th November, 2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation.” 11. From bare reading of the evidence available on record as well as keeping in view the judgments passed by the Hon’ble Apex Court, it is quite clear that the words ‘in the course of the employment’ mean it the course of the work which the workmen is employed to do and which is incidental to it. From bare reading of the evidence available on record as well as keeping in view the judgments passed by the Hon’ble Apex Court, it is quite clear that the words ‘in the course of the employment’ mean it the course of the work which the workmen is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. 12. As I have already observed that there is no evidence available on record that how and in what manner the body of the deceased was found in the canal on the next day. Therefore, I fail to appreciate the findings recorded by the Workmen’s Compensation Commissioner in this regard and I am of the view that it cannot be held by any stretch of imagination in the instant case that the deceased died during the course of employment. 13. For the reasons stated above, the finding arrived at by the Workmen’s Compensation Commissioner that deceased died during the course of employment, is hereby set aside. Consequently, the claim petition filed by the claimant is dismissed. 14. Accordingly, appeal is allowed. The impugned judgment and award passed by Workmen’s Compensation Commissioner, is hereby set aside. 15. The appellant/insurance company is at liberty to withdraw the amount deposited with Workmen’s Compensation Commissioner concerned.