1. This is an appeal filed by the legal representative of the employee challenging the order passed by the Commissioner under the Workmen's Compensation Act, 1923 rejecting the claim of the employee for compensation.

2. It is undisputed that the deceased Vitthal was the employee of the Maharashtra State Electricity Board the predecessor of the present respondent-Maharashtra State Electricity Distribution Company Limited. It is undisputed that the incident of stabbing had occurred within the premises of the workshop during the working hours.

3. The only substantial question of law which arises for consideration in the present appeal is:

“Whether the injury was caused to the appellant by accident arising out of and in the course of his employment ?”

4. Shri N.R. Saboo, the learned Advocate for the appellant has submitted that it being an admitted fact that the incident had occurred within the premises of the workshop and during the working hours, the burden was on the respondent-employer to prove that the accident had not arisen out of and in the course of the employment. It is submitted that the respondent has not led any evidence to discharge the burden of proving that the accident had not arisen out of and in the course of the employment and the learned Commissioner has committed an error in not appreciating theses aspects which has resulted in the erroneous order. The learned Advocate has submitted that once it is proved that the accident had taken place at the place of work and during the working hours, the respondent is liable to pay the amount of compensation. In support of this submission reliance is placed on the following judgments:

1) Judgment given by this Court in the case of Conservator of Forests, Nagpur and another vs. Kusumtai wd/o Ganpatrao Dhote and others, reported in 2013(5) Mh.L.J. 102.

2) Judgment given by this Court in the case of State of Maharashtra vs. Arti wd/o Ashok Kapshikar and others, reported in 2007(6) Mh.L.J. 108.

3) Judgment given by the High Court of Madhya Pradesh in the case of Smt. Asgari Begam and others .vs. Union of India and others, reported in 2000(85) FLR 860.

4) Judgment given by the High Court of Orissa in the case of National Insurance Co. Ltd. vs. Nalini Dehuri and others, reported in 2000 II CLR 744.

5) Judgment given by the Hon'ble Supreme Court in the case of Rita Devi (SMT) and others vs. New India Assurance Co. Ltd. and Another, reported in (2000) 5 SCC 113.

6) Judgment given by the High Court of Madhya Pradesh in the case of Usha Bai .vs. Yogendra Singh, reported in 2002 III LLJ 87.

5. Shri A.D. Mohgaonkar, the learned Advocate for the respondent has submitted that only because the incident had taken place within the premises of workshop during the working hours, it does not mean that the employer is liable to pay the compensation unless it is proved by the claimant that the accident had arisen out of and in the course of the employment. In support of his submissions, the learned Advocate has relied on the judgment given by the Hon'ble Supreme Court in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Ibrahim Mahmmod Issak, reported in 1969 A.C.J. 422. The learned Advocate for the respondent has submitted that the burden to prove that the accident had arisen out of and in the course of employment is on the claimant and it having failed to plead and prove in this regards, it was not necessary for the respondent to lead any evidence in the matter. The learned Advocate has submitted that the order passed by the learned Commissioner is proper and does not require any interference.

6. The Hon'ble Supreme Court in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Ibrahim Mahmmod Issak, in paragraph 5 has dealt with the issue as follows:

“5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words “in the course of the employment” mean “in the course of the work which the workman is employed to do and which is incidental to it