JUDGMENT & ORDER : 1. This appeal preferred by the insurer under Section 30 of the Employee‘s Compensation Act, 1923 (earlier known as “Workmen‘s Compensation Act, 1923”) was admitted by this Court to hear on the following questions of law: 1. Whether the claimant-respondent was an employee in terms of the provisions of the Employee‘s Compensation Act, 1923 at the time of the alleged accident? 2. Whether the claimant-respondent suffered any injury in course of his employment and thereby liable to be compensated by the appellant? 2. Before proceeding further, we may briefly notice the relevant facts of the case. The respondent No. 1 filed a claim petition before the learned Commissioner, Workmen‘s Compensation (as it then was called), West Tripura stating that he was a driver by occupation and was engaged by the respondent No. 2 on temporary basis to drive the Mini Bus bearing registration number TR-01-A-1312 as the permanent driver was on leave. He accordingly joined on 6-10-2010 and started his scheduled journey from Agartala Radhanagar towards Kamalpur via Khowai with the said bus along with some passengers including the assistant of the bus and also the owner of another bus bearing registration No. TR-01-1299. As he was moving towards Kamalpur from Khowai, at about 3-45 PM, when he reached Belbari driving the Mini Bus, he suddenly ran into serious physical problems rendering his physical condition beyond control and after he barely managed to stop the vehicle, he became almost senseless. He subsequently came to learn that the owner of the Mini Bus and the owner of the other Bus and other passengers brought him at first Belbari Hospital by hiring a Jeep and was thereafter shifted to Khowai Hospital. On reference, he was again shifted to AGMC & GBP Hospital, Agartala and was treated there as indoor patient till 12-10-2010. The illness of the respondent No. 1 was stated to be what is popularly known as “stroke”. During his treatment at GBP Hospital, CT Scan of his brain was done and as per this report, he was stated to be suffering from “A large acute ICH with mild parietal Oedma is seen in the left Thalama-Capsular and Peri ventricular region”. According to the respondent No. 1, even after his release from GB Hospital on 12-10-2010, due to the stroke, his right hand and leg became paralyzed. According to the respondent No. 1, even after his release from GB Hospital on 12-10-2010, due to the stroke, his right hand and leg became paralyzed. He was advised for review of his condition from time to time by visiting OPD regularly and was told that for improving his paralysis disease, long treatment was required. He also had to take medicine from time to time. Though he was a professional driver with a valid driving licence at the time of the accident, he has now been rendered workless as right hand and right leg had become paralyzed. The District Disablement Board on 8-12-2010 issued a disablement certificate to him certifying his disability to the extent of 80%. At the time of accident, he was engaged by the respondent No. 2 with a salary of Rs. 5,000/- per month along with daily allowance at the rate of Rs. 50/- per day. He claimed that he was 31 years at the time of the accident. He also claimed that he was the only earning member in the family comprising of his wife and children. He claimed that notice U/s 10 of the Workmen‘s Compensation Act, 1923 was issued to the respondent No. 2 by registered post on 11-4-2011 but the same was returned un-served as he was unavailable at that time at his residential address. Claiming a compensation of Rs. 5,00,000/-, he filed the claim petition before the learned Commissioner, Workmen‘s Compensation, Agartala. 3. The respondent No.2 herein contested the claim petition wherein he admitted that he was the registered owner of the Mini Bus, but asserted that the claimant was engaged as the driver of the Mini Bus for that particular trip on that day for Rs. 200/- and was never engaged on a monthly salary basis. He, however, conceded that his vehicle was insured with the appellant-insurer at the time of the accident and should any compensation be awarded, the same was to be satisfied by the insurer and not by him. The appellant-insurer of the Mini Bus also contested the claim petition and denied the averments of the claimant and denied any liability to pay the compensation. The appellant also took the stance that the injury sustained by the claimant did not occur in the course of his employment under the respondent No. 1 and the claimant was not, therefore, entitled to any compensation. 4. The appellant also took the stance that the injury sustained by the claimant did not occur in the course of his employment under the respondent No. 1 and the claimant was not, therefore, entitled to any compensation. 4. On the pleadings of the parties, the learned Commissioner framed the following issues: (1) Whether the petitioner was appointed by the OP No. 1 as a temporary driver to drive his vehicle No. TR-01-A-1312 (Mini Bus)? (2) Whether on 6-10-2010 at about 3.45 PM the petitioner was attacked by stroke in the course of his employment as a driver under the opposite party No. 1 and due to the said stroke, he became paralyzed on his right hand and leg? (3) Whether the petitioner is entitled to get any compensation and, if so, what shall be the reasonable amount? (4) Who shall make the payment of the compensation money, if any? 5. The claimant-respondent examined himself as PW-1 and also examined the assistant of the Mini Bus as PW-2 to substantiate his allegations and also exhibited some documents such as discharge certificate, prescriptions, outdoor tickets, cash memos and disablement certificate, etc. which were taken into evidence and marked as Exbt. 1 series. No evidence was, however, adduced by the appellant, but the respondent No. 2 produced photocopy of the registration certificate of his Mini Bus. At the conclusion of the trial, the leaned Commissioner passed the impugned judgment. 6. Mr. A. Gon Choudhury, the learned counsel for the appellant, makes two-fold contention, namely, the claimant was never engaged by the respondent No. 2 even on monthly basis, much less, on permanent basis, and was engaged for that particular trip between Agartala and Kamalpur via Khowai on 6-10-2010 and was not, therefore, a workman within the meaning the Compensation Act. Secondly, even assuming without admitting that he was indeed a workman, the stroke suffered by him not received by due to driving undertaken by him in that trip and cannot, as such, be regarded as injury caused to him in the course of his employment. Strong reliance is placed by him on Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another, (2007) 11 SCC 668 and Regional Director, ESI Corporation and another v. Francis De Costa and another, (1996) 6 SCC 1 to fortify his submissions. It is, however, the contention of Mr. Strong reliance is placed by him on Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another, (2007) 11 SCC 668 and Regional Director, ESI Corporation and another v. Francis De Costa and another, (1996) 6 SCC 1 to fortify his submissions. It is, however, the contention of Mr. HK Bhowmik, the learned counsel for the claimant-respondent, that there are sufficient evidence to show that the claimant was engaged as driver for more than one month as a substitute for the permanent driver, who had gone on leave and was in the course of employment when he was attacked by stroke due to stress and strain. Referring to Sub-section (dd) of Section 2 of the Employee‘s Compensation Act, 1923, which substituted sub-section (n) of Section 2 of the erstwhile Workmen‘s Compensation Act, 1923, he submits that under the new definition of “employee” substituting the definition of “workman”, that it matters not whether the employment of claimant under the respondent No. 2 was of a casual nature or not, he now satisfies the definition of “employee”, and the objection raised on this issue by the appellant has now become merely academical in nature. He relies on Jyothi Ademma v. Plant Engineer, Nellore and anr., AIR 2006 SC 2830 and para 44 of Shakuntala Chandrakant Shreshti (supra) to support his various contentions. He, therefore, submits that the impugned judgment does not suffer from any infirmity warranting the interference of this Court. 7. The learned Commissioner on the basis of the evidence of the claimant and PW-2, who was the assistant of the Mini Bus, recorded the findings that the injuries sustained by the claimant was on account of stroke when he was performing his duty as a driver of the said bus in the course of his employment under the respondent No. 1 and that due to the stroke suffered by him, the claimant became 80% disabled. According to the learned Commissioner, the claimant had to be taken to hospitals and during the course of treatment, it was detected that he suffered stroke; that the vehicle driven by him on the date of accident was a Mini Bus, which was travelling from Agartala to Kamalpur via Khowai and that driving of such a vehicle was definitely a strenuous job and that he might have suffered stroke due to strain he had undergone for driving the vehicle. The question to be determined is whether the above findings/conclusions of the learned Commissioner are based on legal evidence in regard to the causal connection between the employment and the death. The law is no longer res integra that this Court will not disturb a finding of an administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. 8. The principles have been elaborately discussed by the Apex Court in Shakuntala Chandrakant Shreshti (supra) in the following manner: “34. The question has recently been considered by a Bench of this Court in Jyothi Ademma v. Plant Engineer, (2006) 5 SCC 513 wherein it was opined: “7. The expression ‘accident’ means an untoward mishap which is not expected or designed. ‘Injury’ means physiological injury. In Fenton v. Thorley & 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 667 as follows: ‘I think that the context shows that in using the word “designed” Lord Macnaghten was referring to designed by the sufferer.’ “ 35. Learned counsel appearing on behalf of the appellant seeks to distinguish this decision stating that therein the job of the workman was merely to “switch on and switch off” and thus there has been no scope of stress and strain in his duties and that the workman had been suffering from a heart disease. But in this case also job of a cleaner was not strenuous and in any event far less than that of the driver of the vehicle. 36. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury. 37. The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty was required to be performed by him, the same was required to be clearly stated. 38. 37. The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty was required to be performed by him, the same was required to be clearly stated. 38. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the facts of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question. 39. Section 30 of the said Act postulates an appeal directly to the High Court if a substantial question of law is involved in the appeal. 40. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Parasharam Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post-mortem examination commenced from 6.30 a.m. on 28-9-2002 and ended at 7.30 a.m. on the same day. From the post-mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. From the post-mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfil the requirements of the terms “out of employment”. Indisputably, there has to be a proximate nexus between cause of death and employment. A stray statement made by the appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly, she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in the cross-examination.” (Underlined for emphasis) 9. In so far as the question as to whether the claimant-respondent No. 1 was casually employed by the owner of the Mini Bus only for that particular trip and not permanently employed by him, it is his evidence that he was engaged by the latter to drive the Mini Bus temporarily as his permanent driver was on leave for a month of October, 2010. PW-2 in his evidence in chief by affidavit corroborated him by deposing that in the month of October, 2010, the owner of the vehicle engaged the claimant-respondent as the driver of the Mini Bus as his permanent driver was on leave. That part of the statement made by the claimant-respondent and PW-2 in their respective evidence that the claimant-respondent was engaged to drive the said Mini Bus in the month of October as the permanent driver was on leave is not denied by the appellant or the owner of the Mini Bus in their cross-examination. So, this much is established: the claimant was engaged to drive the vehicle in question for the month of October and not for that fateful particular trip. So, this much is established: the claimant was engaged to drive the vehicle in question for the month of October and not for that fateful particular trip. In the un-amended Workmen‘s Compensation Act, 1923, to come within the definition of “Workman” as defined in Section 2(n), it has to be ascertained whether the two ingredients mentioned under that sub-section are, on the facts of this case, conjunctively excluded in relation to the respondent. Those are: (1) “whose employment is of a casual nature” and (2) "who is employed otherwise than for the purposes of the employer's trade or business". It is only when both the ingredients are together present, does the exclusion operate. If the person was employed for the purposes of the employer's trade or business, he would be a workman even if his employment was of a casual nature. Likewise if the employment was of a regular nature, the person concerned would be a workman even if he was not employed for the purposes of trade or business. In other words, a person can be excluded from the definition of 'workman' only if his employment was at once of a casual nature and otherwise than for the purpose of the employer's trade or business. It must, therefore, be ascertained before compensation is awarded that the claimant is a workman.- See Kochappan v. PA Krishnan, 1987 ACJ 515 (Ker). However, after the coming into force of the Employee‘s Compensation, Act, which replaced the Workmen‘s Compensation Act, the term “workman” has been substituted by the term “employee” by inserting a new sub-clause (dd) and deleting clause (n) from Section 2 of the Employee‘ Compensation Act. However, after the coming into force of the Employee‘s Compensation, Act, which replaced the Workmen‘s Compensation Act, the term “workman” has been substituted by the term “employee” by inserting a new sub-clause (dd) and deleting clause (n) from Section 2 of the Employee‘ Compensation Act. Thus, the term “employee” is defined as: “(dd) “employee” means a person, who is— (i) a railway servant as defined in clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II; or (ii)(a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India; or (iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;” (Underlined for emphasis) 10. In my opinion, in the light of the new definition of the term “employee” in Section 2(dd) of the Employee‘s Compensation Act, 1923, the claimant is an employee under the employment of the respondent No. 2. Coming now to the next question as to whether the stroke suffered by the claimant-respondent was caused in the course of his employment under the respondent No. 2, in my opinion, the claimant-respondent has miserably failed to prove that there was proximate causal connection between the stroke and his employment. The learned Commissioner has given the finding that the claimant-respondent was 31 years, 7 months and 29 days at the time of the accident. The learned Commissioner has given the finding that the claimant-respondent was 31 years, 7 months and 29 days at the time of the accident. The distance between Agartala and the place where he was attacked by stroke is hardly 100 kilometres. In my opinion, it is not possible to believe that driving a Mini Bus for such distance, which could hardly be considered to be long and arduous journey, by him at that age could land him into stroke. Unless evidence is brought on record based on medical opinion that the stroke received by him on that day was caused by or because of stress and strain while driving the Mini Bus, it cannot be said that there was proximate causal connection between the employment and the stroke sustained by him. In other words, the claimant-respondent was bound to prove jurisdictional fact before the learned Commissioner. As the claimant has failed to prove the jurisdictional facts, the learned Commissioner has no jurisdiction to pass the impugned order. Only because a stroke was suffered by the claimant while driving the Mini Bus, this does not, and cannot necessarily, lead to the conclusion that an accident had resulted in causing some paralysis to him. The accident occurred in the year 2010. Normally, the case is to be remanded to the learned Commissioner for fresh findings concerning the above jurisdictional fact. However, due to long passage of time, this exercise may be neither desirable nor practical at this stage. The learned counsel for the claimant, however, drawing my attention to para 44 of the judgment in Shakuntala Chandrakant Shreshti (supra), submits that this case may also be disposed of by directing that the amount already deposited by the appellant may not be returned to it and the claimant should be allowed to withdraw this amount. It may be noted that the appellant had already deposited a sum of Rs. 8,54,495/- to satisfy the award of the learned Commissioner and out of which, this court by the order dated 19-3-2014 of CM Application No. 111 of 2014 allowed the claimant-respondent to withdraw half of the deposited amount and directed that the rest of the amount be kept in an interest earning fixed deposit for a period of two years. 8,54,495/- to satisfy the award of the learned Commissioner and out of which, this court by the order dated 19-3-2014 of CM Application No. 111 of 2014 allowed the claimant-respondent to withdraw half of the deposited amount and directed that the rest of the amount be kept in an interest earning fixed deposit for a period of two years. In my judgment, the ends of justice will be served by allowing the claimant to retain the amount already drawn by him, while the remaining amount should be refunded to the appellant. 11. The offshoot of the foregoing discussion is that this appeal partly succeeds. I, therefore, direct that 0whatever amount already received by the claimant respondent should not be refunded by him and that the remaining amount kept in a fixed deposit with the interest accrued thereon will be returned to the appellant after satisfying the usual formalities without further reference to this Court. The impugned judgment stands modified to the extent indicated above. No cost. Transmit the LC record.