Yes but still it stays a unfair loss and is not according to the FIDE laws. It happens frequently, the diagram which I mentioned in my OP is very common as most people play closed openings. I mean while playing 30 min in time trouble there are a lot of issues as the opponent never accepts a draw and hopes to flag his opponent, the other option is that we lose only 0.01 secs in premoves but I dont think that helps.
Plus, there is zugzwang. If a player has a move that puts them at a disadvantage, they still must make it regardless if the position looks to be drawn or 'dead.'
The definition of a dead position is one where mate is not possible by any series of legal moves, for either side, therefore there is no chance of a zugzwang.