The main legal point established in the judgment is the casual connection between the duties discharged by the deceased and his death, as well as the inclusion of daily allowance in the deceased's income for computing compensation under the Workmen Compensation Act 1923.

Rajiv Sharma, J.

This appeal is instituted against the order dated 23/9/2014, rendered by the learned Commissioner, Employees’ Compensation, Solan, H.P. in WCA Petition No. 26/2 of 2011.

2. Key facts, necessary for the adjudication of this appeal are that the appellant has filed petition to claim compensation under Workmen Compensation Act 1923 (hereinafter referred to as the Act) against respondent No. 1-owner of the tanker and respondent No. 2, being Insurance Company. The petitioner’s son, namely, Sanjeev Kumar was working as driver with respondent No.1. He used to drive tanker in the year 2001. On 10.8.2001, he had gone to Ambala at Indian Oil Corporation Ltd.. He suffered heart attack due to heavy exertion. He died on the spot in the vehicle itself. The petitioner was fully dependant on the deceased. The monthly wages of the deceased were Rs. 3000/- per month. He was also paid Rs. 80/- per day as daily allowance. Thus, his monthly total wages were Rs. 5400/-. His age was 27 years.

3. The claim petition was resisted by respondent No. 1. Respondent No. 1 denied that the deceased was working with him as driver. The Insurance Company also contested the petition. According to the reply filed by the Insurance company- respondent No. 2, there was no casual connection between the death and work of the deceased.

4. The learned Commissioner framed the issues on 26.9.2007. The learned Commissioner dismissed the petition on 23.9.2014. Hence, this appeal.

5. The appeal was admitted on 24.6.2015, however, inadvertently, there is no reference to the substantial questions of law framed at page 6 of the paper book. In view of this, the appeal would be deemed to have been admitted on substantial questions of law framed at page 6 of the paper book.

6. Mr. Sanjeev Bhushan, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that there was connection between the work and death of the deceased. He then contended that the learned Commissioner has not appreciated the oral as well as documentary evidence in right perspective. On the other hand, Mr. Rahul Mahajan, Advocate, for respondent No. 1 has supported the order of the Commissioner dated 23.9.2014.

7. I have heard learned counsel for the parties at length and gone through the records and order very carefully.

8. The petitioner has appeared as PW-1. She has led her evidence by filing affidavit Ext. PW-1/A. She has placed on record identity card vide Ext. PW-1/B and driving licence Ext. PW-1/C. PW-2 Vishal Gupta, deposed that he was working as Deputy Manager in Indian Oil Corporation. He has brought certain records pertaining to the tanker. The deceased was found unconscious in the oil tanker. The dead body was taken to hospital and post mortem was also conducted. The form No. 25-35 was filled up by the concerned I.O vide Ext. PW-5/A. The I.O has also recorded the statements of some witnesses vide Ext. PW-5/B and PW-5/C. The I.O has proved post mortem report vide Ext. PW-5/E. PW-3 Ram Chand has also deposed that the deceased was working as driver with respondent No. 1.

9. The petitioner has duly proved that the deceased was working as driver with respondent No.1 and he had gone to Ambala. The learned Commissioner has given findings that the doctor who has conducted the post mortem has not been examined and it was for the petitioner to prove by leading cogent evidence that the deceased died of heart attack induced by heavy stress and strain of work.

10. It has come in Ext. PW-5/A that deceased died of heart attack. In post mortem report Ext. PW-5/E, though doctor who has conducted the post mortem has not been examined, but in one of the columns, the cause of death has been shown to be heart attack, as information furnished by the police. In mark P-4, Sh. Naveen Kumar has deposed that they reached the Depot at 8:00 AM. He was working as cleaner with the deceased. When they were taking tanker inside the Depot at 9:30 AM, the deceased told him that he had pain in