JUDGMENT : Dinesh Chandra Somani, J. 1. The instant appeal has been preferred by the non-claimant/appellant under Section 30 of the Employee's Compensation Act, 1923 (hereinafter referred to as "the Act") against the judgment and award dated 22/09/2009 passed by the Commissioner, Employee's Compensation, Jaipur District-II, Jaipur in Claim Case No. WCCF 122/2008, whereby the learned Commissioner allowed the claim petition and passed an award of Rs. 4,33,060/- with interest @ 12% per annum from 22/06/2008. 2. Brief facts necessary for disposal of this appeal are that the claim petition was filed by the claimant/respondents No. 1 to 3 (wife and parents of the deceased Hari Singh) under the provisions of the Act for getting compensation of Rs. 51,00,000/- along with interest on account of death of Hari Singh. The claim petition was filed taking stand that the death of the deceased had occurred during the course of employment under the non-claimant/respondents No. 4 & 5. It was also averred in the petition that the deceased Hari Singh was employed as driver on vehicle No.RJ-14-CB-0752 under the employment of non-claimant/respondents and the said vehicle was insured with the appellant-insurance company. It was also averred that on 22/05/2008, while Hari Singh was driving the vehicle No.RJ-14-CB-0752 under the directions of non-claimant/respondents, suddenly his health condition worsened and he died during the employment. It was also averred that at the time of the incident, the deceased Hari Singh was 22 years old and he was getting Rs. 7,000/- per month as salary and Rs. 50/- per day as diet allowance from his employers. 3. The non-claimant/respondents filed written statement admitting the fact that the deceased Hari Singh was employed under their employment on their truck No.RJ-14-CB-0752 and was paid Rs. 7,000/- per month as salary. The non-claimant/respondents also stated that the vehicle was insured with the appellant-insurance company at the relevant time, as such liability if any arises to pay the compensation, then the insurance company is liable to pay the same and prayed to dismiss the claim petition against them. 4. The appellant-insurance company filed the written statement denying the averments of the claim petition and pleaded that there is no evidence on record to establish the relationship of employee and employer. It was also pleaded that there is no nexus between the employment and the death. 4. The appellant-insurance company filed the written statement denying the averments of the claim petition and pleaded that there is no evidence on record to establish the relationship of employee and employer. It was also pleaded that there is no nexus between the employment and the death. It is also stated that the death of Hari Singh occurred due to effect of the liquor and he died on account of overdose of the liquor. It was further stated that the insured vehicle was being plied by the insured without permit and fitness certificate' and the driver was not having valid license, and prayed to dismiss the claim petition against the insurance company. 5. On basis of the pleadings of the parties, the learned Commissioner framed as many as five issues. 6. In support of the claim petition, the claimants submitted affidavit of Smt. Tanu Kanwar, claimant herself. Copy of the affidavit was provided to learned counsel for the appellant-insurance company, who cross-examined the witness on her affidavit. The claimants exhibited as many as 7 documents to be Ex.1 to Ex.7. The employer-respondent did not produce any evidence. The appellant-insurance company submitted affidavit of Chandradeep Singh and exhibited as many as six documents to be Ex.NA-1 to Ex.NA-6. 7. After hearing learned counsel for the parties, the learned Commissioner decided the claim petition vide impugned judgment dated 22/09/2009 and passed an award of Rs. 4,33,060/- along with interest @ 12% per annum from 22/06/2008 i.e. after one month of the date of incident. 8. Being dissatisfied with the impugned judgment and award, the appellant-insurance company has preferred this appeal. 9. Mr. Virendra Agarwal, learned counsel for the appellant submitted that it is very much clear from the FIR that the deceased Hari Singh took liquor at Dhaba and thereafter he died on account of overdose of the liquor. The post-mortem report produced by the claimants on record, does not disclose the cause of death and it is mentioned therein that opinion regarding cause of death shall be given after receipt of chemical and pathological report for which viscera has been preserved and sealed. The appellant-insurance company has produced report of Forensic Science Laboratory (Ex.NA-3/1), wherein it is mentioned that the viscera gave positive tests for the presence of ethyl alcohol and oregano phosphorous insecticide and gave negative tests for metallic poisons, methyl alcohol, cyanide, alkaloids, barbiturates and tranquilizers. The appellant-insurance company has produced report of Forensic Science Laboratory (Ex.NA-3/1), wherein it is mentioned that the viscera gave positive tests for the presence of ethyl alcohol and oregano phosphorous insecticide and gave negative tests for metallic poisons, methyl alcohol, cyanide, alkaloids, barbiturates and tranquilizers. Thus, it is proved that the cause of death is consuming the alcohol, as such it cannot be said that the cause of death has nexus with the nature of job, but the learned Commissioner has committed grave error in not appreciating the above facts therefore, the impugned award is liable to be quashed and set aside. 10. Learned counsel for the appellant also contended that during course of the inquiry under Section 174 of Cr.PC, statement of Lalaram, the cleaner (Khallasi) of the vehicle was recorded. A copy whereof has been produced by the appellant and exhibited as Ex.NA-2, which reveals that the deceased stayed at Dhaba and there he took two quarters of liquor and thereafter he took the dinner and died on account of consuming alcohol. Thus, the finding of the learned Commissioner holding that the cause of death has nexus with the nature of job, is erroneous and as such, the impugned award is liable to be quashed. In support of his contentions, learned counsel for the appellant placed reliance on AIR 1958 Supreme Court 881 Saurashtra Salt Manufacturing Co. v. Bai Valu Raja and Others and 2009 (2) T.A.C. 17 (S.C.) Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. and another. 11. Per contra, Mr. Vivek Choudhary, learned counsel for the claimant-respondents strongly opposed the contentions of learned counsel for the appellant and supported the impugned judgment passed by the learned Commissioner. 12. Learned counsel for the claimant-respondents contented that the death of Hari Singh had occasioned during and in course of the employment. The vehicle was insured at the relevant time and the risk of driver was covered under the policy. Learned counsel also contended that it is proved from the evidence available on record that the vehicle was taken by the deceased in the course of employment at the behest of the non-claimant/respondents and death had occurred arising out of and in the course of employment. Learned counsel also submitted that the nexus between the death and employment has been established, and prayed to dismiss the appeal being devoid of merits. Learned counsel also submitted that the nexus between the death and employment has been established, and prayed to dismiss the appeal being devoid of merits. In support of his contentions, learned counsel for the claimant-respondents placed reliance on 2015 (1) WLC (Raj.) 358 The New India Assurance Co. Ltd. v. Smt. Lada Devi & Others. 13. We gave our anxious consideration to rival contentions of learned counsel for the parties and perused record of the case. Section 3(1) of the Act of 1929, which is relevant for the purpose of this case reads ad infra :- "3. Employer's Liability for compensation.-(1) If personal injury is caused to an employee 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 employee 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 employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or (iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee." In para No. 8, 9, 11, 13 and 15 of the judgment in Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. & Another (supra), Hon'ble Apex Court has observed and held as under :- 8. Under Section 3 (1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable. 9. The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) A.C. 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlocked 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) A.C. 676 as follows; "I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer". 11. This Court in ESI Corpn. v. Francis De Costa, 1996 (6) SCC 1 , referred to, with approval, the decision of Lord Wright in Dovar Navigation Co. Ltd. v. Isabella Craig, 1940 A.C. 190, wherein it was held; (All ER p. 563) "Nothing could be simpler than the words 'arising out of and in course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is employed to do-gives a claim to compensation, unless it also arises out of the employment. Hence, the Section imports a distinction which it does not define. The language is simple and unqualified." 13. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is employed to do-gives a claim to compensation, unless it also arises out of the employment. Hence, the Section imports a distinction which it does not define. The language is simple and unqualified." 13. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn's case (supra) in regard of 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 records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 15. 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, (3) injury aggravate due to stress and strain. 14. In Saurashtra Salt Manufacturing Co., v. Bai Valu Raja & Ors. (supra), after finishing his work, a workman employed in a salts works was returning home in public ferry boat, which capsized due to bad weather, was drowned. A claim petition for compensation was moved, which was allowed by the Commissioner and compensation was awarded to the claimants. The appellant appealed to the High Court which came to be dismissed. In the appeal, Hon'ble Apex Court held that the incident could not be said to have arisen out of and in the course of employment while crossing the creek in as much as the theory of notional extension could not extend to the point where the boat capsized. 15. In The New India Assurance Co. Ltd. v. Smt. Lada Devi & Ors. (supra), the deceased Bhanwar Lal, who was working as a driver on a truck had died in an accident while working as such. 15. In The New India Assurance Co. Ltd. v. Smt. Lada Devi & Ors. (supra), the deceased Bhanwar Lal, who was working as a driver on a truck had died in an accident while working as such. The incident occurred when after taking break at Dhaba for having a tea, Bhanwar Lal while returning to commence his onward journey, was stated to have been overrun by a speeding unknown vehicle. Coordinate Bench of this Court held that during the period of such tea break, the driver definitely continues in the employment of the owner of truck. It was also held that nexus between his employment as driver of truck and his death in the accident which occurred in course of his employment is clear, and dismissed the appeal filed by the insurer. Due to difference in facts and circumstances of the case, the law laid down by the Coordinate Bench is not of much help to the claimant/respondents. 16. Case of the claimant/respondents is that on 22/05/2008 while Hari Singh was driving the vehicle No.RJ-14-CB-0752 under the directions of non-claimant/respondents, suddenly his health condition worsened and he died during the employment. 17. Admittedly "Unnatural Death (Marg) Report" No. 3/2008 was registered at Police Station Pugal, District Bikaner on 23/05/2008 and an inquiry under section 174 of Cr.P.C, 1973was made by the police and the report was submitted to S.D.O. Khajuwala. Lalaram, cleaner of the vehicle was with the deceased Hari Singh when the truck was taken by the deceased at the behest of the non-claimant/respondent. During inquiry, statement of Lalaram was recorded under section 161 of Cr.P.C , 1973and a copy whereof has been produced and exhibited by the appellant-insurance company as Ex.NA-2, which reveals that the deceased stayed at Dhaba and there Hari Singh took two quarters of liquor and thereafter he took dinner. 18. Post-mortem report (Ex.5) produced by the claimants does not disclose the cause of death. It is mentioned in the postmortem report that opinion regarding cause of death shall be given after receipt of chemical and histopathological examination report for which viscera has been preserved and sealed. The non-claimant/insurance company has produced FSL report (Ex.NA- 3/1), wherein it is mentioned that the viscera gave positive tests for the presence of ethyl alcohol and oregano phosphorous insecticides, which reveals that the cause of death is consuming of alcohol. 19. The non-claimant/insurance company has produced FSL report (Ex.NA- 3/1), wherein it is mentioned that the viscera gave positive tests for the presence of ethyl alcohol and oregano phosphorous insecticides, which reveals that the cause of death is consuming of alcohol. 19. The words "arising out of employment" used in Section 3(1) of the Act are understood to mean that injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the employer, the employee would not otherwise have suffered. There must be a casual relationship between the accident and the employment. 20. In the present case there is nothing on record to suggest that the death of Hari Singh had occurred on account of risk incidental to the duties of the service. There is no nexus between the cause of death and the nature of job of the deceased. 21. In view of above, the appellant-insurance company cannot be fastened with the liability to pay the compensation to the claimant/respondents. Therefore, the finding of the learned Commissioner holding that the cause of death has nexus with the nature of job of the deceased, is erroneous and is liable to be quashed and set aside. 22. Consequently, the appeal is accordingly allowed and the impugned judgment passed by the Commissioner, Employee's Compensation, Jaipur District-II, Jaipur, directing the appellant-insurance company to pay the compensation, is set aside. No costs.