Swapan Chandra Das, J.

1. This appeal, under Section 30 of the Workmen's Compensation Act, has been admitted by this Court for hearing on the following substantial question of law.

Whether a death caused due to illness arising out of and in course of employment of the workman could be termed as an accidental death within the meaning of Section 3 of the Workmen's compensation Act.

Heard learned senior counsel, Mr. S Deb assisted by learned counsel, Mr. M.K. Roy for the appellants and learned counsel, Mr. A Gon Choudhury for the respondent No. 2, the New India Assurance Company Ltd.

2. Respondent Nos. 1 and 3 have chosen to remain absent.

3. Brief Fact:

Sanjit Debnath, aged about 21 years, a bachelor, was employed as a Helper-cum-Cleaner of vehicle No. AS-01C-6315 (Truck), by the owner of the vehicle i.e. respondent No. 1. Date of hearing: 22.11.2012 Date of delivery of Judgment & order: 18.12.2012.

Respondent No. 3 was the engaged driver of the vehicle. On 16.08.1999 the vehicle with a load of Cashew nut started from Agartala for Calcutta. The case of the claimant petitioners is that on 21.08.1999 the vehicle reached Koochbihar, West Bengal and due to heavy rains the road was water-logged and the wheel of the vehicle was struck in clay-mud. Sanjit was asked by the driver to get down and to clear the mud so that the wheels of the vehicle can move. Accordingly, Sanjit done his job. But suddenly, the vehicle moved and Sanjit got a knock and as a result he suffered injuries. Further, as he was soaked with rain water he was caught with high fever. Thereafter, he was admitted in Alipurduwar Sub-Divisional hospital on 21.08.1999 and was under treatment by Dr. M.V. Choudhury. He died in hospital on 26.08.1999 at about 12.00 noon due to cardio respiratory failure in a case of severe malaria (cerebral malaria). It is the further case of the petitioners that Sanjit used to get a monthly wage of Rs. 2,500/- and Rs. 60/- per day towards tiffin etc. Notice was given to the owner for payment of compensation but no compensation was paid. The petitioners, therefore, filed the case before the Commissioner, Workmen's compensation for granting them Rs. 2,26,710/- as compensation.

4. Respondent Nos. 1 and 3 i.e. the owner and driver of the vehicle submitted a joint written statement admitting all the averments made in the claim petition. It is further stated that respondent No. 1 paid a sum of Rs. 9,500/- towards funeral expenses etc. after the death of the deceased. They have further stated that the vehicle was insured with the respondent No. 2, insurance company covering the risk of the driver and cleaner and so, the liability, if any, should be saddled on the insurance company.

Respondent No. 2, the New India Assurance Company Ltd., also contested the case filing written statement denying averments made in the petition and further stated that the deceased Sanjit Debnath died due to cerebral malaria, as per the documents submitted by the petitioners which is not connected with the job of the deceased and so far such death of the deceased because of ailment, unconnected with the job of the deceased, does not come under the purview of the provisions prescribed under the Workmen's Compensation Act. The respondents, therefore, prayed for dismissal of the claim.

5. The Commissioner, Workmen's Compensation in course of inquiry framed the following issues:

1. Was deceased Sanjib Debnath a workman under O.P. 1 on the date of alleged accident on 21.08.1999 as defined in Workmen's Compensation Act?

2. Whether Sanjib Debnath aged about 21 years succumbed to his injuries on 26.08.1999 due to an accident on 21.08.1999 at Koch Vihar, West Bengal under Alipur P.S. arising out of and in course of his employment under O.P. No. 1 as Assistant-cum-Cleaner of AS-01C-6315 (Truck)?

3. Is the claimant-petitioners to get any compensation under Workmen's Compensation Act? If so, what should be the quantum of compensation and who is liable to pay it?

In due course, the appella