Judgment:
Chandrashekaraiah, J.
1. This appeal is by the claimant who filed application claiming compensation before the Commissioner for Workmen's Compensation for the death of her husband one Narasimha.
2. The facts in this case are, that the husband of the appellant, Narasimha was working in the respondent's Hotel. On 17-4-1985, when he was sleeping in the Hotel, he was killed by a co-worker, one Sri Nagaraja at about 1.00 a.m. in the night. In this regard, a First Information Report was also given to the jurisdictional police. Thereafter, the appellant-claimant filed an application claiming compensation. The said application was rejected by the Commissioner in the first instance. The said order was set aside by this Court in the miscellaneous first appeal and remanded the matter for fresh enquiry to the Commissioner. Again, after remand, the Commissioner dismissed the application filed by the appellant on two grounds. Firstly, he has held that the deceased Narasimha was not a workman, Secondly, the claimant is not entitled to claim any compensation since, the death of Narasimha falls outside the course of the employment. This order is under challenge by the appellant in this appeal.
3. Sri S.N. Bhat, learned Counsel for the appellant submitted that the Commissioner was not right in holding that the deceased Narasimha was not a workman when the respondent himself admits that he is an employee of the respondent. There is some substance in this contention. The Supreme Court has held in several cases that the Hotel is an industry. If that is so, since the deceased Narasimha was admittedly an employee working in the respondent-Hotel, I hold that he is a workman as defined under the Act.
4. The next question that arise for consideration is:
Whether the death of the deceased Narasimha, consequent on the killing by one Nagaraja, is within the course of the employment or arise out of the employment?
5. It is an admitted fact that Narasimha was killed by one Nagaraja, who is a co-worker in the Hotel. The working hours of the deceased Narasimha is between 8.00 a.m. to 8.00 p.m. daily as seen from the evidence of the appellant before the Commissioner. The death took place at about 1.00 a.m. in the midnight. From the evidence, I find that Narasimha was staying in the Hotel at the time of death, on his own even though he was not expected to stay in the night in the Hotel, since it was not one of the conditions of service. Therefore, if deceased was staying in the Hotel, on that day in the night, he was staying there on his own. At the time of his death also, he was not engaged in the master's work. If that is so, on the basis of the said facts, the death of the husband of the claimant cannot be said to be either within the course of employment or arising out of the employment.
6. Sri S.N. Bhat, learned Counsel appealing for the appellant relying upon the decision of the Kerala High Court in the case of United India Insurance Company Limited v. Philo and Ors., : (1997)ILLJ76Ker submitted that, on thefacts of this case, the Commissioner ought to have held that the death falls within the course of the employment. The facts in this case are, the workman was employed as a driver to drive a tourist taxi. When the said taxi was taken on hire by the hirer and when the vehicle was parked in the halting station, he was killed by some unidentified persons and the car was stolen. On these facts, it was held by the Kerala High Court that there is a causal connection between the employment and the death. Admittedly, the driver, while he was engaged in the work of the master killed by some unidentified persons while he was sleeping in the halting station. Therefore, it is held that the death has taken place in the course of the employment.
7. The learned Counsel relied upon another decision of the High Court of judicature at Madras in T.N.C.S. Corporation Limited v. S. Poomalai, . In this case, while the workmen was on his way to mill for attending his duty, was murdered in communal clash. This death was held to be within the course of the employment. This decision, in my opinion is no longer a good law, in view of the decision of the Supreme Court in case of Regional Director, E.S.I. Corporation and Anr. v. Francis De Costa and Anr., : (1997)ILLJ34SC . The facts involved in the decision of the Supreme Court are as follows:
'One Francis De Costa, met with an accident on June 26, 1971 while he was on his way to the place of his employment, a factory at Koratty. The accident occurred at a place which was about one kilometre away to the north of the factory. The time of occurrence was 4.15 p.m. It has been stated that the duty shift of the respondent would have commenced at 4.30 p.m. The respondent was going to his place of work on bicycle. He was hit by a lorry belonging to the respondents M/s. J and P Coats (Private) Limited'.
On these facts, the High Court has held that there is causal connection between the accident and the employment. This decision has been reversed by the Supreme Court holding that if an employee, on his way to the factory, i.e., the place of employment, dies in the accident at place which is one kilometre away from the place of employment, cannot be said to be caused by accident arising out of and in course of his employment. In view of this decision of the Supreme Court, it cannot be said, on the basis of the fact and the evidence adduced in the instant case, that the death had any causal connection with the employment. Therefore, I am of the considered view that the Commissioner is right in rejecting the application for compensation.
8. In the result, I pass the following order.--
(a) Appeal is dismissed.
(b) No cost.