Abdul Gafoor, J.

The writ petition is by the 1st respondent in the appeal filed by the insurer. The contentions raised in the appeal by the insurer is that admittedly by the parties, the death of the workman occurred due to drowning. This cannot have any casual connection with his employment as a conductor in the bus insured with the appellant. So the death did not occur during the course of employment and the respondent are not entitled to the compensation in terms of the Workmen’s Compensation Act which shall have to be paid by the appellant on the strength of the insurance policy in force. In support of this contention the appellant relies on the decision of the apex Court in E.S.I. Corporation vs. Francis De Costa (1996 (2) KLT 799) and a decision of the Division Bench of this court reported in Travancore Titanium Products Ltd. v. Jerro (2000 (1) KLT 643.

2. It is submitted by the counsel for the first respondent who has filed writ petition No.15973/05, that the facts proved before the workmen compensation commissioner disclosed that the bus in which the deceased was a conductor had to start its trip at 3.30 a.m. in the night. Therefore apart from himself the driver and cleaner were, for the purpose of employment, to be with the bus in the bus station during the night after the trip had terminated. Consequently they have to meet the human needs including bathing before they commence work on the next day by 3.30 a.m. It is for the purpose of bathing and meeting other humanly needs they had gone to a stream nearby and it was at that time the accident occurred resulting death of the workman who was working as a conductor of the bus. Therefore the accident did have direct and causal connection with the employment. In support of this contention the decision reported in Devshi Bhanji Khona v. Mary Burna & Anr. (1985 KLT 78) is relied on.

3. We have to examine the question of law raised in this appeal whether the death was as a result of the accident occurred arising out of and during the course of employment as provided in Section 3 of the Workmen’s Compensation Act in order to cast liability on the employer to compensate for the death. The Supreme Court examining the meaning of employment injury as defined in Employees State Insurance Act, 1948 considered as follows;

“In our judgment, by using the words “arising out of … his employment”, the Legislature gave a restrictive meaning to “employment injury”. The injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment. “Out of”, in this context, must mean caused by employment. Of course, the phrase “out of” has an exclusive meaning also. If a man is described to be out of his employment, it means he is without a job. The other meaning of the phrase “out of” is “influenced, inspired, or caused by; out of pity; out of respect for him”. (Webster Comprehensive Dictionary – International Edition-1984). In the context of S.2(8), the words “out of” indicate that the injury must be caused by an accident which had its origin in the employment. A mere road accident, while an employee is on his way to his place of employment cannot be said to have its origin in his employment in the factory. The phrase “out of the employment” was construed in the case of South Maitland Railways Pty. Ltd. Vs. James 67 CLR 496, where construing the phrase “out of the employment” Starke, J held the words “out of” require that the injury had its origin in the employment”.

4. Thus the Supreme Court, referring to Maitland Railways Case found that the words ‘out of’ require that the injury has its origin in the employment. The Supreme Court also had kept in mind before coming to this conclusion that the employment injury shall arise in any way out of his employment. Therefore the connection between the employment injury and the employment shall always have to be taken into consideration.

5. A Division Bench of this court in Jerro’s case (2000