( 1 ) IN this appeal, the question for consideration is whether the death of one Velayudhan following heart attack can be attributed to an accident arising out of and in the course of his employment. The appellant-Insurance Company is aggrieved by the order of the Commissioner for Workmen's compensation, Madikeri, in holding that the deceased died during the course of employment.

( 2 ) THE learned Counsel for the appellant shri A. N. Krishnaswamy submitted that it is an admitted fact that the deceased though was a driver by occupation, went home as he had a pain in the heart and thereafterwards, he was taken to the hospital where he died out of heart attack. Both sides had not disputed this aspect of the matter, but the question is whether the death which occurred in the hospital could be linked to the employment of the deceased under 5th respondent.

( 3 ) THE learned Counsel for the appellant/ insurance company referring to the decision of the Apex Court reported in AIR 1997 SC 432 in the case of Regional Director, ESI corporation and another v. Francis De Costa and another, submitted that by no stretch of imagination cam it be inferred from the facts and circumstances of this case that the death of velayudhan come within the ambit expression of arising out of and in the course of employment.

( 4 ) ON the other hand, learned Counsel for the respondents-claimants submitted that the deceased was driving the Lorry belonging to the 5th respondent and while the lorry was going from Kudlur on the way the deceased had a pain in the heart and thereafter, the deceased went to his home and then he was brought to the hospital where he died and therefore, in the instant case the death will have to be construed as one having taken place during the course of employment and arising out of employment.

( 5 ) I am unable to support the view expressed by the learned Counsel for the claimants-respondents. The facts of this case which are not in dispute does not give impression that death of Velayudhan took place while he was on duty and that it had happened in the course of his employment. The Hon'ble supreme Court has laid down the law in this regard in number of cases and the said question also came up for consideration in the decision cited by the learned Counsel for the appellant.

( 6 ) IN the case of Regional Director, ESI corporation and another v. Francis De Costa and another, reported in AIR 1997 SC 432, it has been observed by the Hon'ble Apex Court at paragraph No. 11 thus :

"construing the meaning of the phrase "in the course of his employment", it was noted by Lord Denning that the meaning of the phrase had gradually been widened over the last 30 years to include doing something which was reasonably incidental to the employee's employment. The test of "reasonably incidental" was applied in a large number of English decisions. But Lord Denning pointed out that in all those cases the workman was at the premises where he or she worked and was injured while orr a visit to the canteen or other place for a break. Lord denning, however, cautioned that the words "reasonably incidental" should be read in that context and should be limited to the cases of that kind. Lord Denning observed :-"take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something "reasonably incidental"

to his employment. But if he has an accident on the way, it is well settled that it does; not "arise out of and in the course of his employment". Even if his employer provides the transport, so that he is going to work as a passenger in his employer's vehicle (which is surely "reasonably incidental" to his employment), nevertheless if he is injured in an accident, it does not arise out of and in the course of his employment. It needed a special "deeming" provision in a statute to make it "deemed" to arise out of and in the course of his employment".

( 7 ) IN a recent decision of the Hon'ble S

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