Neutral Citation No. ( 2026:HHC:19336 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 248 of 2015 Reserved on: 18.05.2026 Date of decision: 22.05.2026 Date of uploading on website: 22.05.2026 ________________________________________________ National Insurance Company Limited. …..Appellant. Versus Sarita Devi & others. ……Respondents. ________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? Yes. ________________________________________________ For the appellants: Mr. Jagdish Thakur, Advocate. For respondents No. 1 & 3(a) to 3(c): Mr. Vikrant Thakur, Advocate. For respondent No. 4: Mr. Digvijay Singh, Advocate. Sushil Kukreja, Judge. The present appeal is maintained by the appellant-National Insurance Company Limited, who was respondent No. 2 before the learned Commissioner below (hereinafter referred to as “the appellant Insurance Company”) against award dated 04.12.2014, passed by Commissioner, Employees Compensation, Civil Judge (Senior Division) Mandi, District Mandi, H.P. (hereinafter 1 Whether reporters of Local Papers may be allowed to see the judgment? Neutral Citation No. ( 2026:HHC:19336 ) 2 referred to as “the learned Commissioner below”) in W.C. Petition No. 2/2012, whereby the petition filed by the petitioners/claimants, before the learned Commissioner below (hereinafter referred to as “the petitioners/claimants”), for grant of compensation under the Workmen Compensation Act (for short “the Act”), was allowed and they were held entitled to compensation of Rs.5,98,680/- with interest @ 12% per annum, which was to be paid by the appellant-Insurance Company from the date of filing of the petition till realization of the amount. 2. Succinctly, the facts giving rise to the present appeal are that the petitioners, i.e., Smt. Sarita Devi, Shri Abhishek and Smt. Durga Devi, wife, son and mother of Shri Hazara Singh (deceased workman), filed a claim petition under Section 22 of the Act seeking compensation. As per the petitioners, Shri Hazara Singh (the deceased), was an employee of respondent No. 1-Smt. Roopa Devi and was working as driver in truck, bearing registration No. HP-31- 3855. On 20.11.2011 he died during the course of his employment as driver while he was on duty on the aforesaid truck. As per the petitioners, the deceased was found dead beside the aforesaid vehicle at around 01:45 p.m. on Neutral Citation No. ( 2026:HHC:19336 ) 3 20.11.2011 at village Nalsar, after unloading the truck at the store of M/s Diloo Tam at Nalsar, thus the deceased was under the employment of respondent No. 1 at the time of his death. The petitioners/claimants further averred that they were dependents of the deceased workman, being his legal representatives. The deceased used to go on long journeys as driver and mostly had to drive day and night, which often resulted in fatigue, stress and strain, which ultimately caused his death. It was also averred by the petitioners/claimants that during the course of his work, the deceased felt uncomfortable and parked the vehicle nearby the road, as such his death occurred out of and during the course of employment as driver. The petitioners/claimants averred that monthly wages of the deceased was Rs.10,000/- and the deceased was over the age of 50 years at the time of his death. 3. Respondent No. 1 contested the claim petition by filing reply, wherein preliminary objection of maintainability of the petition was taken. On merits, it was admitted that the deceased had been employed as driver, who died during the course of employment. The replying respondent used to pay monthly wages of Rs.8000/- and Rs.100/- per day for meal Neutral Citation No. ( 2026:HHC:19336 ) 4 and residence free of cost. As per the replying respondent, the vehicle in which the deceased was employed was duly insured with respondent No. 2-National Insurance Company Limited (appellant herein) and the Insurance Company is liable to indemnify the petitioners/claimants. 4. Respondent No.2-Insurance Company filed separate reply to the claim petition, wherein preliminary objections of maintainability and cause of action have been taken. On merits, the relationship of employee and employer between the deceased and respondent No. 1 was denied and it was averred that the deceased died due to natural death. As per the replying respondent, the disease, due to which the deceased died, had no nexus with driving profession. Lastly, dismissal of the claim petition was prayed. 5. On the basis of the pleadings of the parties, on 02.04.2013, the learned Court below framed the following issues for determination and adjudication: “1. Whether the deceased Hazara Singh was employed as truck driver by respondent No. 1 as alleged? OPP 2. Whether the deceased Hazara Singh has died during the course of his employment as workman as alleged? OPP Neutral Citation No. ( 2026:HHC:19336 ) 5 3. Whether the petitioners being dependent of late Shri Hazara singh are entitled for compensation as prayed for? OPP 4. Whether the truck of respondent No. 1 being registration No. HP-31-3855 was comprehensively insured with the respondent No. 2 as alleged? OPR-1 5. Whether the respondent No. 2 is duty bound to indemnify the respondent No. 1? OPR-1 6. Whether there was no relation of workman and employer between late Hazara Singh and respondent No. 1? OPR-2 7. Relief.” 6. On 25.08.2014 the learned Trial Court framed following additional issues: “4(a). Whether the petition is not maintainable as alleged? OPR-2 4(B). Whether the petitioners have no cause of action against the respondent No. 2, alleged? OPR-2 4(c). Relief.” 7. After hearing the learned counsel for the parties and considering the evidence on record, the learned Commissioner below allowed the claim petition and held the petitioners/claimants entitled for compensation of Rs.5,98,680/- with interest @ 12% per annum, which was ordered to be paid by respondent No. 2, i.e., appellant- Neutral Citation No. ( 2026:HHC:19336 ) 6 Insurance Company, from the date of filing of the petition till realization and the amount of compensation was ordered to be apportioned amongst the petitioners, i.e., petitioner No. 1 to the extent of 50% and petitioners No. 2 and 3 to the extent of 25% each. Hence, the appellant-Insurance Company filed the instant appeal. 8. On 20.03.2026 this Court admitted the instant appeal on the following substantial questions of law: “1. Whether the learned Commissioner below was right to fasten the liability on appellant to pay compensation on account of death of the deceased, who had neither died due to any injuries arising out of and in the course of employment nor due to any occupational disease as find mentioned in Schedule III of the Act? 2. Whether the learned Commissioner below was right in taking the income or salary of the deceased as Rs.8000/- per month in the absence of any documentary evidence and has further erred by not taking the income as per minimum wages prevalent at the time of the accident. 3. Whether the learned Commissioner below has misinterpreted and misconstrued the law, as well as facts of the present case?” 9. The learned counsel for the appellants contended that the impugned award, passed by the learned Commissioner below, is against the law and facts, and the same is based on surmises and conjectures, without Neutral Citation No. ( 2026:HHC:19336 ) 7 appreciating the documents, thus the same is not sustainable in the eyes of law and liable to be quashed and set-aside. He further contended that the learned Commissioner below had erred in passing the impugned award, as the deceased had died due to natural death and there is no casual connection between the death of the deceased and his employment 10. Conversely, the learned counsel for respondents No. 1 & 3(a) to 3(c) supported the impugned judgment. He contended that the deceased was employed as driver on the truck of respondent No. 1 and on 20.11.2011 when the deceased was on his duty, he died during the course of his employment as driver. He further contended that the deceased used to undertake long journeys as driver number of times and he had to drive day and night, due to which he developed fatigue, stress and strain, which ultimately resulted into his death. 11. I have heard the learned counsel for the appellant, learned counsel for respondents No. 1 & 3(a) to 3(c) and carefully examined the entire record. 12. At the very outset, it would be pertinent to mention that the learned counsel for the appellant-Insurance Neutral Citation No. ( 2026:HHC:19336 ) 8 Company has not pressed substantial question of law No. 2 regarding the income of the deceased taken by the learned Commissioner @ Rs.8000/- per month. 13. Now, the question which arises for consideration before this Court is whether there is a casual connection between the death of the deceased and his employment or not? 14. It is a settled law that the death of the deceased in ordinary course or even in course of employment, cannot attract liability of the employer, unless there is a casual connection, between death and employment. To come within the Act, the injury must arise out of and in the course of employment. The words "in the course of employment" means, in the course of work for which the workman is employed to do and which is incidental to it. The words "arising out of duty or employment" are understood to mean that "during the course of the employment or service. In short, there must be a casual relationship between the injury and employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression, undoubtedly, applies to employment such as to its nature, its conditions, its Neutral Citation No. ( 2026:HHC:19336 ) 9 obligations and its incidents. In order to hold the employer liable for the payment of compensation, it is not necessary to show that the injury in question occurred or caused during the actual working hours or while performing actual duties. 15. Now adverting to the facts of the case in hand. Smt. Sarita Devi appeared in the witness-box as PW-1, and she also tendered in evidence her affidavit, Ex. PW-1/A, wherein she deposed that the deceased was her husband who was employed as driver by respondent No. 1 on her truck, bearing registration No. HP-31-3855, and during the course of his employment, as driver, the deceased succumbed to the injuries arising out of and in the course of his employment as driver while he was on duty on truck under reference, resulting into his death on 20.11.2011. 16. Dr. Priksit Malhotra, Medical Officer, Zonal Hospital, Mandi, appeared in the witness-box as PW-2 and deposed that he had conducted the postmortem examination of the deceased, the report of which is Ex. PW-2/A. This witness, in his cross-examination, admitted that the deceased died due to acute necrotizing cellulites and fasciitis. He further admitted that this disease has no nexus with the driving. Neutral Citation No. ( 2026:HHC:19336 ) 10 17. Admittedly the workman had died on account of acute necrotizing cellulites and fasciitis suffered by him. As per the medical literature, cellulitis is a common infection that occurs when bacteria enter the deeper layers of skin and the soft tissue beneath the skin. Without treatment, cellulitis may lead to necrosis, which is the death of bodily tissue in the skin. Necrotizing fasciitis is a rare and severe bacterial infection that causes necrosis in the connective tissues of the muscles and other tissues and may lead to serious complications and death. It may develop as a complication of cellulitis. 18. Now, the question that would arise for consideration is, whether acute necrotizing cellulites and fasciitis suffered by the deceased, can be termed as a personal injury suffered by him on account of accident arising out of and in the course of his employment? Before proceeding to consider the said question, it would be useful to refer to Section 3(1) of the Workmen’s Compensation's Act which reads as hereunder: "Section 3(1): If the personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the Neutral Citation No. ( 2026:HHC:19336 ) 11 provisions of this Chapter." 19. From the reading of Section 3(1) of the Act what would emerge is that an employer is liable to pay compensation, in accordance with the provisions of the Act, to a workman, if such workman suffers personal injury by an accident arising out of and in the course of his employment. 20. In Jyothi Ademma vs. Plant engineer, Nellore and Another; (2006) 5 Supreme Court Cases 513, The Hon’ble Supreme Court held that: "6. Under Section 3 (1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as 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 diseased coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable". 21. In AIR 2007 SC 248 (Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali) & another, the Hon’ble Supreme Court laid down the following principles with regard to essential ingredients to attract the provision of Section 3 of the Act : Neutral Citation No. ( 2026:HHC:19336 ) 12 “24. The principles are: (1) There must be a casual 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 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. 25. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended 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. 26. There is a crucial link between the casual connections of employment with death. Such a link with the 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. 27. 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.” … … … … … … … … 22. The Hon’ble Supreme Court in Malikarjuna G. Hiremath vs. Branch Manager, Oriental Insurance Co. Ltd. & another, 2009 ACJ 721, has held as under: Neutral Citation No. ( 2026:HHC:19336 ) 13 “15. 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. 16. 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 aggravated due to stress and strain.” 23. The claim of the petitioners is to be now appreciated in the light of the above legal position. As per averments made in claim petition, on 20.11.2011 when the deceased was on his duty, he died during the course of his employment. The petitioners averred that deceased was found dead beside the vehicle at about 01:45 p.m. on 20.11.2011 at village Nalsar, Mandi, after he unloaded his truck at the store of M/s Dilooo Ram and it was also averred that the deceased used to undertake long journeys as driver number of times and he had to drive day and night, which resulted in fatigue, stress and strain and ultimately caused his death. The petitioners also contended that during the course of driving the deceased felt uncomfortable and parked his vehicle near the road, therefore, his death Neutral Citation No. ( 2026:HHC:19336 ) 14 occurred during the course of employment as driver. Thus, as per the petitioners, the death of the deceased was the result of his employment and happened due to the service conditions. 24. As observed earlier, mere death in ordinary course by some bodily ailment or event in “course of employment", cannot attract liability of the employer, under Section 3 of the Act. There should be a casual connection between "employment and the death in an unexpected way" in order to bring the accident within Section 3 of the Act. 25. In Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali’s case supra, the Hon’ble Supreme Court further held as under: “27. ... … … … 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 aggravated due to stress and strain 28. The deceased was travelling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous. 29. 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 Neutral Citation No. ( 2026:HHC:19336 ) 15 aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. 30. Circumstances must exist to establish that death was 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.” 26. In the instant case, the burden was upon the petitioners to establish that the deceased suffered acute necrotizing cellulites and fasciitis due to some risk incidental from the duties of his service and the nature of duties contributed to the death of the deceased. However, no evidence has been led by the petitioners that the deceased suffered acute necrotizing cellulites and fasciitis due to his employment and working conditions. There is no evidence whatsoever, to support the averments made in the claim petition. The petitioners have not been able to prove that acute necrotizing cellulites and fasciitis was the result of the nature of job. Rather PW-2 Dr. Priksit Malhotra admitted in his cross-examination, that the deceased died due to acute necrotizing cellulites and fasciitis and this disease has no Neutral Citation No. ( 2026:HHC:19336 ) 16 nexus with the job of driving. As already referred to, the fact that the deceased died due to acute necrotizing cellulites and fasciitis is not disputed, but, that by itself will not, give rise to automatic presumption that the same was by way of accident. Medical expert was not examined to prove that the deceased could have suffered stress and strain as a result of the hectic schedule of motor vehicle driving or had developed acute necrotizing cellulites and fasciitis due to dust, fumes and improper air ventilators or unhygienic working conditions. The burden was upon the petitioners to establish the existence of the circumstances that the nature of the employment was such that it involved stress and strain and acute necrotizing cellulites and fasciitis was caused due to some risk incidental from the duties of the service and the nature of duties contributed to the death. Since, the deceased died as a result of acute necrotizing cellulites and fasciitis and the petitioners having failed to prove a casual connection between the injury and the accident and the work done in the course of employment, the learned Commissioner below had erred in allowing the claim petition, therefore, no compensation could have been awarded in favour of the petitioners/claimants. Neutral Citation No. ( 2026:HHC:19336 ) 17 27. In view of what has been discussed hereinabove, the instant appeal is allowed and the claim petition filed by the petitioners/claimants is dismissed. The impugned award, passed by the learned Commissioner below, is quashed and set-aside. The substantial questions of law are answered accordingly. Pending miscellaneous application(s), if any, shall also stand(s) disposed of. ( Sushil Kukreja ) Judge 22nd May, 2025 (virender)