( 1 ) THE appellants-original claimants in Compensation Case No. 43 of 1980 have filed the present appeal as their claim was rejected by learned Civil Judge (S. D.) and Ex-Officio Commissioner appointed under the Workmens Compensation Act at Ndiad (hereinafter referred to as the Commissioner) by his judgment and award dated 11-9-1981.

( 2 ) A few relevant facts of the case are asunder: the applicant No. 1 appellant No. 1 herein is the wife and applicants Nos. 2 to 5 appellants Nos. 2 to 5 are sons and daughter of Sahebsinh Vajesinh Mahida who was serving as Diesel Assistant in the Grade of Rs. 290-350 plus allowances in Western Railway with Head Quarters at Godhra According to the applicant Sahebsinh died during the course of employment and the present applicants being his heirs are entitled to receive compensation of Rs. 23 100 The deceased was serving in the Western Railway as Diesel Assistant and his main duty was to assist the driver of the goods train as Assistant Driver. The deceased was on duty on 16-5-1976 with goods train No. 1 UK 23/10 from Godhra to Ahmedabad namely Bajwa. The said train started from Godhra at about 11. 00 p. m. and when it reached near Bajwa deceased complained chest pain and he was perspiring. He took rest for some time and thereafter the train went ahead towards Ahmedabad but when the said train reached Anand the deceased felt severe pain in the chest and hence his companion driver Maganlal S. Makwana took him to the Railway Hospital at Anand for treatment. The deceased was admitted in the hospital at about 4. 00 a. m. on 17-5-76 and after some time he was discharged and directed that he should go for further treatment at Godhra From the Hospital he was taken to his relatives place in Anand who was staying in Railway Quarters. He again developed some pain and therefore Doctor was called but before the Doctor could reach he died at the quarter of his relative Ajitsinh According to the applicants the deceased died because of heart failure while he was on duty during the course of employment of opponent Nos. 1 2 and 3 and as such the opponents were liable to pay compensation on the basis of his salary. The applicants claimed Rs. 23 100 towards compensation and as nothing was deposited towards compensation within one month the applicants are also entitled to claim penalty and interest thereon. The applicants orally as well as in writing requested to the opponents for payment of compensation on 18-3-1977 9 and 15-4-1979 but nothing was paid.

( 3 ) THE said application was resisted by the opponents by Ex. 17 wherein it was inter alia contended that there is no dispute about the accident and that the deceased was working as workmen under the Workmens Compensation Act and that he died during the course of his employment and also that the applicants are the heirs and dependents of the deceased but the main contention of the opponents was that no cause of action has arisen because the deceased neither died during the course of employment nor has it arisen out of it but the deceased met with natural death out of heart failure due to hypertension on 17-5-1976 at about 15. 30 hours. Therefore the application should be dismissed.

( 4 ) IN view of the pleadings of the parties the Commissioner had raised the issues and came to the conclusion that the deceased had died natural but act of the death caused on account of exertion put up by the employee during the course of his duties of employment. The Commissioner finally dismissed the application with no order as to costs. Being aggrieved by the said judgment and order of the learned Commissioner the applicants have preferred this First Appeal.

( 5 ) MR. J. M. Patel learned Counsel appearing for the appellants has mainly contended that the deceased died during the course of employment under respondents Nos. 1 2 and 3 on 17-5-1976 and that the appellants are entitled to claim compensation amount of Rs. 23 100 with interest and costs. On the other han