JUDGMENT :

H.K. Rathod, J.

Heard learned Advocate Mr. HS Munshaw for the appellant Bhavnagar Municipal Corporation and learned Advocate Mr. Kishor M. Paul for respondent claimant.

2. Through this appeal, appellant Corporation has challenged order passed by Workmen's Compensation Commissioner Bhavnagar Exh. 38 in WC (Fatal) Case No. 4 of 2005 dated 28.8.2008 wherein Commissioner has granted compensation of Rs. 2,99,559.00 in favour of claimant with simple interest thereon at the rate of 9 per cent per annum from 22.9.2004 and also to pay amount of penalty at the rate of 25 per cent of Rs. 74,890.00 to applicant within thirty days from the date of order.

3. Facts of case of applicant were to the effect that husband of applicant Maganbhai Havalia was serving as permanent Safai Kamdar in establishment of appellant in Conservancy Department. Claimant is also performing duty as Safai Kamdar in the appellant establishment. After getting the presence marked, claimant was going in district allotted for safai work. After the sweeping work of an hour, for taking the garbage through tractor, workmen from the conservancy department would come and in this manner work has to be done. After the tractor driver and safai kamdars came , presence was to be marked and after garbage is collected, till sent for duty, safai kamdars those who have reached have to remain present in the conservancy centre of Bhavnagar Municipal Corporation. Husband of the claimant Maganbhai Harjibhai Havalia was working as permanent safai Kamdar in the establishment of appellant. His period of duty was from 6.30 a.m. To 1.30 p.m. On 22.9.2004, claimant and her husband both had gone for duty at 6.00 a.m. Claimant was having duty to serve in the District and, therefore, after getting her presence marked, she had gone for performing her duty whereas husband of claimant was waiting for collection of garbage in Ward Office near Garasia Boarding. This being the arrangement, before the presence of husband of claimant could be marked, in view of sudden chest pain, he sat down. Fact was brought to the notice of other safai kamdars working in conservancy. Husband of claimant was immediately brought to their house in rickshaw and thereafter, ambulance was called and he was shifted in Government hospital for treatment where he died due to heart attack. Based upon aforesaid facts, since her husband died while he had gone for performing duty from home and before he is sent for work after getting his presence marked, he received heart attack and expired and in this manner, accident had taken place while resuming duty and, therefore, aforesaid WC (Fatal) Case was filed. At the time of accident, age of the deceased was 47 years, salary was Rs. 4674.00 and at the rate of factor 169.74, prayer was made for compensation of Rs. 3,11,240.00 with interest and penalty from appellant corporation. Learned Commissioner granted compensation of Rs. 2,99,559.00 with interest thereon at 9 per cent per annum from date of accident and penalty at the rate of 25 per cent as stated above against which this appeal has been filed by appellant corporation.

4. Learned Advocate Mr. HS Munshaw for appellant submitted that deceased was not on duty at the time of alleged accident and nature of duty of deceased has nothing to do with his illness and cause of death. He submitted that the Commissioner should have held that deceased expired before joining duty. Relying upon judgment of apex court in Civil Appeal No. 6201 of 2004 dated 11.7.2006 reported in 2006 (3) CLR 438, in case of Jyothi Ademma v. Plant Engineer, Nellore & Anr., he submitted that only if the employment is contributory cause or accelerated death, then only it can be said to be death arose from employment and employer is liable to pay compensation but in this case, none of said ingredients were available to death cause of deceased and, therefore, compensation ought not to have been awarded by learned Commissioner. He further submitted that as the deceas