JUDGMENT : M. VENKATA RAMANA, J. 1. This Civil Miscellaneous Appeal is directed against the order of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Circle-I, Visakhapatnam in W.C. No. 44 of 2004 dated 24.12.2005. 2. The 1st respondent before the commissioner is the appellant. The applicant and the 2nd respondent before the Commissioner are the respondents 1 and 2 respectively. 3. The 1st respondent laid an application before the Commissioner to pay compensation of Rs.3,19,600/- on account of the death of her husband Sri late Adhinarayana allegedly out of and in the course of employment for the appellant. 4. It was the case of the 1st respondent before the Commissioner that her husband Sri Adhinarayana was a watchman-cum-servant working since the year 1980 till 11.10.2003 continuously for the appellant and was staying in the quarters provided by the appellant. She further alleged that the 2nd respondent was the manager of the 1st appellant, while her husband was working as such in Shriram Bhavan, Visakhapatnam belonging to the appellant. 5. The 1st respondent further alleged that on 11.10.2003 when her husband was on duty at Shriram Bhavan, Visakhapatnam, since he was exposed to bitter cold, he suffered heart attack and consequently died at 10.30 p.m. on the same day when he was admitted in King George Hospital, Visakhapatnam. The medical opinion was that her husband died due to cardiogenic shock. 6. The applicant also alleged in her application that her husband was receiving monthly wages at Rs.2,000/- though he is entitled for Rs.4,000/- per month and the appellant did not offer any compensation nor death benefits without settling their claim on account of death of her husband. However, the appellant and the 2nd respondent asked her to vacate the quarter in May, 2004 and she was forcibly evicted therefrom. Thus stating, she requested for relief before the Commissioner. 7. The appellant denied the claim of the 1st respondent and to the effect that her late husband was working for it as a servant-cum-watchman at Shriram Bhavan, Visakhapatnam. It further claimed that this building was used for accommodating the Vice Chairman-cum-Managing Director of the company or their family members whenever they were visiting Visakhapatnam, temporarily and it was never used as an office. It further claimed that this building was used for accommodating the Vice Chairman-cum-Managing Director of the company or their family members whenever they were visiting Visakhapatnam, temporarily and it was never used as an office. The appellant further alleged that the deceased was only a domestic servant and was not a regular employee and that this building infact was owned by M/s. R.B. Shreeram and Company Private Limited that was leased out to the 1st respondent. It also denied that the deceased died during and in the course of employment and claimed that the nature of the duty did not involve any stress or stain nor it was round the clock work. It also claimed that the compensation claimed is excessive. 8. The 2nd respondent also opposed the claim of the 1st respondent before the Commissioner denying its case, raising identical pleas as of the appellant. He further claimed that the deceased was being paid only Rs.1,240/-. 9. Before the Commissions, the 1st respondent examined herself as AW-1 and marked Ex.A1 to Ex.A9. On behalf of the appellant as well as the 2nd respondent, Sri T. Kamala Rao was examined as RW-1, who was then Manager (Administration) working in the appellant company and who was the General Power of Attorney holder of M/s. R.B. Shreeram and Company Private Limited. Ex.R1 to Ex.R7 were marked on behalf of the appellant and the 2nd respondent during enquiry. 10. The Commissioner basing on the material settled the following issues for enquiry: “1. Whether the deceased is a workman as per the provisions of the Act and died during and in the course of and out of employment? 2. What was the age of the deceased at the time of accident? 3. What was the wage of the deceased at the time of accident? 4. Whether the applicant entitled to completion. If so, what amount of compensation the applicant is entitled to receive? 5. Who are liable to pay the compensation?” 11. On the material, the Commissioner accepted the claim of the 1st respondent and finally awarded a compensation of Rs.1,99,007/- and considering that the 1st respondent had received Rs.15,000/- from the appellant, directed the appellant to deposit Rs.1,84,007/- towards compensation by the Commissioner. 12. It is against this order, the appellant has preferred this appeal. 13. Sri C.V. Grandhi, learned counsel for the appellant submitted arguments. 12. It is against this order, the appellant has preferred this appeal. 13. Sri C.V. Grandhi, learned counsel for the appellant submitted arguments. None represented the respondents nor any arguments are submitted on behalf of the 1st respondent. 14. Now the point for determination is - Whether the material on record is proving the jural relationship of ‘master and servant’ between the appellant and the deceased Sri Adhinarayana respectively and if the commissioner is justified in awarding compensation to the 1st respondent making the appellant liable? POINT: 15. The deceased Adhinarayana was working as a driver residing in Shriram Bhavan, which is otherwise known as ‘Garividi Guest House’ at Visakhapatnam. The material on record also makes out that this Shriram Bhavan belonged to M/s. R.B. Shreeram and Company Private Limited and that it is a sister concern of the appellant. He was being paid a paltry sum of Rs.1,240/- per month as wages. 16. Apart from the evidence of AW-1 and AW-2, Ex.R7-Wage Particulars for August, 2003 produced through RW-1, makes it clear that the deceased was being paid wages on behalf of M/s. R.B. Shreeram and Company Private Limited. It is also in the evidence of RW-1 that these wages were being reimbursed by the appellant. 17. A notice was issued on behalf of the 1st respondent in Ex.A5 on 30.06.2004 calling upon the appellant to pay compensation stating that the deceased Adhinarayana joined in the Guest house referred to above popularly known as Shriram Bhavan in Visakhapatnam in the year 1980 and that he worked continuously till he died on 11.10.2003. As per reply notice dated 04.07.2004 in Ex.A6, Sri Adhinarayana was a driver of the car belonging to the appellant company and that, he was residing in one of the quarters in this guest house enjoying this rent free accommodation. 18. The material so available on record was rightly relied on by the Commissioner to hold that the deceased Adhinarayana was an employee of the appellant. Contra to it, the material produced by the appellant in the course of enquiry is not sufficient and on the other hand, such material itself is establishing this jural relationship. 19. Admittedly, Sri Adhinarayana died at 10.30 p.m. on 11.10.2003 due to heart attack. It was so declared when he was taken to King George Hospital, Visakhapatnam and his admission in that hospital is proved by Ex.A1. 20. 19. Admittedly, Sri Adhinarayana died at 10.30 p.m. on 11.10.2003 due to heart attack. It was so declared when he was taken to King George Hospital, Visakhapatnam and his admission in that hospital is proved by Ex.A1. 20. The essential question now is whether the death of Sri Adinarayana was on account of stress and strain, he was subjected to while discharging his duties and if unable to bear the chill weather on the date of the accident he died? 21. It was the contention of the 1st respondent before the Commissioner that Sri Adhinarayana died of bitter cold and due to heart attack on account of exposure to bitter cold. There is evidence of AW-1 viz. the 1st respondent in this respect. AW-2, a colleague of Sri Adhinarayana also deposed in this context and who had taken him to the hospital. The same reason was set out in Ex.A5 legal notice, of death of Sri Adhinarayana. As seen from Ex.A6 reply issued on behalf of the respondent, this reason leading to the death of Sri Adinarayana is not specifically denied. Belated denial of this reason during enquiry either in the counter filed by the appellant or the 2nd respondent or evidence let in through R.W.1 can make good this lapse nor can be a substitute. The duties of an attender or the driver in the guest house of this nature, particularly when he was provided this residential accommodation be perceived as 24/7. Therefore, when the evidence is on record to the effect that Sri Adhinarayana was discharging his duties likewise, the same cannot be overlooked. Possibly the employment stress suffered by Sri Adhinarayana would have got aggravated during the cold season, on the date of death. It can well be perceived that the weather would have been chilly during winter time in October. Therefore, the reason for the death can well be taken as an incidence of his employment. 22. On behalf of the appellant repelling such claim of the 1st respondent, it is contended that there must be a nexus between his employment and the cause of death. A mere death when the deceased was on duty is not by itself sufficient, according to the contention of the appellant. 22. On behalf of the appellant repelling such claim of the 1st respondent, it is contended that there must be a nexus between his employment and the cause of death. A mere death when the deceased was on duty is not by itself sufficient, according to the contention of the appellant. Reliance is placed in this context on Mackinnon Mackenzie and Co-Private Limited vs. Ibrahim Mahommad Issak, AIR 1970 SC 1906 in an attempt to explain when application of Section 3 of Workmen Compensation Act arises. In Paras-5 and 6 of this ruling, the observations in this context are as under: “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 “in the course of the work which the workman 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 causal 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 these factors the workman is brought within the scene 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. In Lancashire and Yorkshire Railway Co. vs. Highley, 1917 AC 352 Lord Summer laid down the following test for determining whether an accident, arose out of the employment: “There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. vs. Highley, 1917 AC 352 Lord Summer laid down the following test for determining whether an accident, arose out of the employment: “There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury.” 6. In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove: it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but' the evidence must be such as would induce a reasonable man to draw it. Lord Birkenhead L.C. in Lancaster vs. Blackwell Colliery Co. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but' the evidence must be such as would induce a reasonable man to draw it. Lord Birkenhead L.C. in Lancaster vs. Blackwell Colliery Co. Ltd. 1918 WC & IR 345 observed: “If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour.” 23. Further reliance is placed in Regional Director, ESI Corporation vs. Francis De Costa and Another, (1996) 6 SCC 1 . Basing on the fact situation in this ruling in para – 29, the observations recorded are as under: “29................... In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a causa connection with the employment and (3) the accident must have been suffered in the course of employment..............” 24. The Workmen Compensation Act is undoubtedly for the benefit of the workmen while striking a balance in between the relationship of employers and the employees. Thus in effect the ultimate purpose of this legislation as a welfare measure for workmen should be borne in mind in construing fact situation in application of Section 3 of Workmen Compensation Act. It is well known that the workmen obviously placed in certain disadvantageous position than a mighty employee, who will have all sources at his command to meet a challenge of this nature. These factors should be borne in mind particularly in the facts and circumstances of this case. 25. The appellant did not place any material establishing that it was not a season when the deceased could have suffered on account of the bitter cold winter nor it would have hastened his death. These factors should be borne in mind particularly in the facts and circumstances of this case. 25. The appellant did not place any material establishing that it was not a season when the deceased could have suffered on account of the bitter cold winter nor it would have hastened his death. Discharging such duty during cold winter is a part of the risk the deceased had to face. This circumstance can also be taken into consideration as per the test laid down in Mackinnon Mackenzie. 26. Reliance is also placed on behalf of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali, AIR 2007 SC 248 in this context. It was held that the nature of incident and cause of death are the questions touching upon the jurisdiction of the commissioner to enquire into a claim under the Workmen’s Compensation Act. These instances are essentially based on facts in each case. In the circumstances, having regard to the evidence on record, it is desirable to apply the well known principal of res ipsa loquitur. In such circumstances, the burden shifts to the appellant to prove that the situation prevailing at the time of death of the deceased was not such that it would have lead to his mortality. 27. On behalf of the appellant reliance is also placed in Jyothi Ademma vs. Plant Engineer, Nellore and Others, 2006 (110) FLR 776 . In Paras 5 to 7 of this ruling which are relevant for the present purpose, it is observed thus: “5. 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 result 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. 6. The expression “accident” means an untoward mishap which is not expected or designed. “Injury” means physiological injury. In Fenton vs. Thorley and Co. 6. The expression “accident” means an untoward mishap which is not expected or designed. “Injury” means physiological injury. In Fenton vs. Thorley and Co. Ltd. (1903) AC 448, 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 vs. 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.” 7. 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.” 28. On such conspectus, when the material in this case is considered vis-à-vis the reasons assigned by the Commissioner, awarding compensation by the Commissioner cannot as such be found fault with. 29. Necessary parameters were considered by the commissioner. Age of the deceased was taken at 45 years and relying on G.O.Ms. No. 30 of LET & F (Lab-II) Department, dated 28.04.2001, minimum wages of the deceased was taken at Rs.2,549/- for a servant or watchman. 169.44 factor applicable to the age group of the deceased was considered. On such basis, the Commissioner computed compensation at Rs.1,99,007/- in all, payable by the respondent to the appellant. Basing on the admission of the 1st respondent that she received Rs.15,000/- towards compensation after deducting such amount, Rs.1,84,007/- was awarded. In the circumstances, the reasons so assigned by the Commissioner are just and appropriate. They stand in consonance with the material on record and there is no reason to depart therefrom. 30. Therefore, on the material, the compensation so awarded by the Commissioner should be confirmed and there is no reason to interfere with the order of the Commissioner under appeal. 31. They stand in consonance with the material on record and there is no reason to depart therefrom. 30. Therefore, on the material, the compensation so awarded by the Commissioner should be confirmed and there is no reason to interfere with the order of the Commissioner under appeal. 31. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order of the Commissioner for Workmen’s Compensation Act and Assistant Commissioner of Labour, Circle-I Visakhapatnam in W.C. No. 44 of 2004 dated 24.12.2005. No costs. 32. As a sequel, pending miscellaneous petitions, if any, stand closed. Interim Orders, if any, stand vacated.