Koshy, J.

This appeal is filed by the insurance company against the judgment of the Workmens Compensation Commissioner in awarding compensation for a workman who was murdered during the course of employment, on an application by his widow and 5 children. It is the case of the appellant that the murder has nothing do with the use of the motor vehicle and it is not arising out of employment.

2. Facts of the case is that the deceased was engaged by the first opposite party to drive his autorikshaw. There is no dispute that deceased was a workman as defined in the Act. While he was on duty, 2 persons hired the autorikshaw and he was killed by them. When they hired the autorikshaw, the deceased thought that they were bonafide passengers and they had no previous enmity with him, but they killed him. If he were aware that they are not bonafide passengers, he would not have allowed them to travel in his autorikshaw. The Commissioner has found that the murderers hired the autorikshaw as bonafide passengers and killed the driver. Hence the incident occurred during the course and arising out of the employment.

3. TheCommissioner has further observed thus:

"The workman was killed while he was working as a driver. His Autorikshaw was hired by the people on the disguise of ordinary passengers and he was killed by them. If he was not doing the job of driver, at this point of time he would not have been killed by this killers. He had no suspicion about these passengers who later turned his killers. Therefore there is no doubt that it was an accident out of his employment".

This is a finding of fact based on FIR, charge sheet and oral evidence adduced. In the light of the admitted facts the deceased was engaged as a driver by the first respondent and that he was killed while performing the duties as a driver. His death was certainly connected with the employment and there is nexus to the death and use of motor vehicle and his employment. In Lancashire and Yorkshire Railway Company v. Highley (1917 AC 352) it was observed by Lord Sumner as follows:

"There is, however, in any opinion, one test which is always at any ate applicable, because it arises upon the very words of the Statute, and it is generally of some real assistance. In is this:Was it part of the injured persons employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of this was within the sphere of the employment or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury".

This decision was approved by the Apex Court in M.Mackenzie v. I.M.Issak (AIR 1970 SC 1906).

4. When it is admitted that the accident occurred in the course of employment, the burden is on the employer to prove that it has no connection with the employment. Shri Chagla C.J. in Bhagurai v. General Manager, Central Rly. (AIR 1955 Bom. 105) held as follows:

"Once that proximate connection is established the applicant has discharged he burden, and in this case the proximate connection between the employment and the injury is the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death. In our opinion the learned Commissioner was in error in coming to the conclusion that the applicant had failed to discharge the burden that the deceased died of injury by accident arising out of his employment".

In the above case the Divisio