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 nagaraja at about 1 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 ) MR. 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 arises 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 are between 8 a. m. and 8 p. m. daily as seen from the evidence of the appellant before the commissioner. The death took place at about 1 a. m. in the midnight. From the evidence, i find that narasimha was staying in the hotel on the date of death, on his own even though he is not expected to stay in the night in the hotel, since it is not one of the conditions of service. Therefore, if narasimha was to stay in the hotel, on that day in the night, he was staying on his own. At the time of death also, narasimha 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 arise out of the employment.

( 6 ) MR. S. n. bhat, the learned counsel appearing for the appellant relying upon the decision of the Kerala high court in case of United India Insurance Co. Ltd. V. Philo, 1996 ACJ 849 (kerala), submitted that on the facts 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 was killed by some unidentified persons while he was sleeping in the halting station. Therefore, it was held that the death had taken place in the course of employment.

( 7 ) THE learned counsel relied upon another decision of the High Court of judicature at Madras in T. N. C. S. Corporation Ltd. V. S. Poomalai, 1996 ACJ 273 (Madras ). In this case, while the workman was on his way to mill for

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