Death of deceased driver due to heart attack.

R. Sengottuvelan, J.

1. This Civil Miscellaneous Appeal is filed against the order of the Additional Commissioner for Workmen's Compensation, Coimbatore, passed in W.C. No. 44 of 1978, by one K. Saraswathi the wife of the deceased K. Guruswami who was employed as a driver under the second respondent herein. According to the appellant, K. Guruswami died in the course of his employment and as such she is entitled to compensation.

2. In the application before the Additional Commissioner for Workmen's Compensation the appellant impleaded one S. Narayanaswami as opposite party No.1, the first respondent herein, since the registration of the lorry stood in the name of S. Narayanaswami and M. Palaniappan as opposite party No. 2, the second respondent herein, since he is the actual owner of the lorry. The Oriental Fire and General Insurance Company, Madras, was also impleaded as opposite party No. 3.

3. The first respondent herein filed a counter statement before the Additional Commissioner for Workmen's Compensation to the effect that he sold the lorry to the second respondent herein and hence he is not the employer.

4. The second respondent herein also filed a counter statement before the Additional Commissioner for Workmen's Compensation. He contended that late Guruswami was working under him on a temporary basis only for 4 or 5 days prior to his death since the regular permanent driver was on leave, the late Guruswami was not working under him at any time before, that he did not receive any personal injury by accident arising out of and in the course of his employment resulting in his death and as such the appellant herein will not be entitled to any compensation in law. The cause of death is due to heart attack and it has nothing to do with the employment of the deceased under the second respondent herein and it cannot be said that the death had arisen in the course of his employment as driver under the second respondent herein. The monthly wages mentioned in the application is also disputed. Hence, the second respondent herein prayed for the dismissal of the application.

5. The Additional Commissioner for Workmen's Compensation came to the conclusion that the first respondent herein was not the employer since the lorry was sold 5 or 6 years before the accident to the second respondent herein. He held that the second respondent herein is the owner, of the lorry but the ownership was not actually transferred in his name. The lorry was insured in the name of the first respondent herein with the third respondent herein. The Additional Commissioner for Workmen's Compensation found from the documents produced by the police one Sellamuthu was driving the vehicle while the deceased and the cleaner were sitting in the back seat of the lorry on 28.2.1977, and while at Sankari the deceased complained of severe pain in his chest he was taken to the Government Hospital, Sankari, for treatment, inspite of which he died. The Additional Commissioner for Workmen's Compensation also observed that the person who actually drove the vehicle and the cleaner of the vehicle were not examined. He also observed that there is no evidence to show that the deceased suffered any particular stress or strain due to his work at the time of his death. He was not driving the vehicle though he was on duty. The Additional Commissioner for Workmen's Compensation found that the death of the deceased cannot be said to have occurred on account of an accident that arose out of and in the course of his employment. As against the said order of the Additional Commissioner for Workmen's Compensation this civil miscellaneous appeal is filed.

6. On the basis of the contention of the parties and the arguments advanced the following points arise for determination in this case:

1. Who is the employer in this case?

2. Whether the deceased is a workman as defined in Section 2(1)(n) of the Workmen's Compensation Act?

3. Whether the death was caused as a result of an accident?

4. Whether