JUDGMENT 1. This appeal arises out of a claim under Workmen's Compensation Act and the sole question to be considered is whether the deceased workmen had met with the accident arising out of and in the course of their employment. The learned Commissioner under the Workmen's Compensation Act held that the accident had not occurred out of and in the course of the employment of the workmen concerned and consequently dismissed the claim of their dependents. 2. The present appeal is directed against that decision. 3. The facts giving rise to the present case are as follows:– Two workers Dhannalal aged about 22 and Premlal aged about 30 were employed as labourers (Beldars) on daily wages in the Tractor-section of the Engineering Department of the Western Railway. On 22-9-1959 they were deployed in the morning for bringing spare pumps and three Kirloskar Engines in a road-tractor from the Sipra pumping station which is situated between Railway Stations Sipra and Barlai. They had with them two other labourers and the tractor-driver Yunus. At about 3 P. M. the tractor got stuck up at a distance of three quarters of a mile from Barlai. The driver thereupon asked the labourers to remain with the tractor during his absence and proceeded to Indore promising to return soon. He however failed to return during that night. Dhannalal and Premlal along with one Pancham sought shelter for sleeping during the night. They went to a cabin of a railway servant situated at some distance from the place where the tractor had got stuck up and asked for his permission to sleep inside the cabin for the night. The railway servant permitted them to do so at the same time asking them to keep the burning fire pot outside before they slept. The three men after the departure of the railway servant on night duty, closed the door as it was a cold night and slept while the fire pot was still burning within. They were found dead in the morning. Their bodies were sent for post-mortem examination. On performance of autopsy the medical opinion was that their death was due to coal-gas poisoning. 4. Ramdas, the father of Dhannalal and Sushila Bhagwanti wife of Premlal for herself and as the guardian of their minor children have submitted separate petitions for compensation. 5. They were found dead in the morning. Their bodies were sent for post-mortem examination. On performance of autopsy the medical opinion was that their death was due to coal-gas poisoning. 4. Ramdas, the father of Dhannalal and Sushila Bhagwanti wife of Premlal for herself and as the guardian of their minor children have submitted separate petitions for compensation. 5. The petitions were opposed on behalf of the Western Railway, who had engaged the deceased as labourers and had deputed them to bring the three Kirloskar Enginees and other things on the grounds that the deceased labourers did not fall within the category of 'Workmen' as defined in section 2 (1) (n) of the Workmen's Compensation Act; that there was no proper service of notice under section 10 of the Workmen's Compensation Act and that their death did not occur while they were in the course of their employment. 6. The learned Commissioner found that the deceased Dhannalal and Premlal were workmen within the definition of the term as given in section 2 (1) (a) of the Workmen's Compensation Act. He further held that it was necessary to give notice under section 10 of the Act. He however held that their death did not occur due to accident arising out of or in the course of their employment. With reference to the petition filed by Ramdas it was also contended that the petitioners were not a dependent of the deceased workmen. The learned Judge held that the statement of Ramdas indicated that his income was supplemented by that of his deceased son Dhannalal and consequently he should be taken to have been partially dependent upon his son's earnings. 7. As a result of his finding that the death of the workmen did not occur in the course of their employment nor did it arise out of it, he dismissed their petitions. 8. Both of them now prefer this appeal. 9. It is contended on their behalf that the aforesaid finding recorded by the learned Commissioner for Workmen's Compensation is incorrect. It is urged that the workmen had been sent to bring the Kirloskar Engines and spare pumps. They had not returned home from their course of duty. They were required to stay near about the tractor during the night and they were required to seek shelter nearby for the night. The Railway Chowki was such a place. It is urged that the workmen had been sent to bring the Kirloskar Engines and spare pumps. They had not returned home from their course of duty. They were required to stay near about the tractor during the night and they were required to seek shelter nearby for the night. The Railway Chowki was such a place. While they were thus asleep they lost their lives by sheer accident. The fact that they could with a certain care have avoided the accident is not a circumstance which can exonerate the Employer State from liability to pay compensation. 10. On the other hand it is contended on behalf of the respondent that the deceased workmen had left their post of duty and had gone to the Railway Chowki for sleep. They in these circumstances cannot be said to be on duty nor can it he said that the accident occured out of or in the course of their employment. It is secondly contended with reference to the appeal preferred by Dhannalal's father Ramdas that it was neither alleged nor proved satisfactorily that he was either wholly or partially dependent upon the deceased worker Dhannalal. A mere statement that his income was augmented by the earnings of his son is not sufficient for holding that he was partially dependent upon him. 11. The two points which therefore fall to be considered are: – (1) Whether the death of the workmen in this case can be said to have occurred out of or in the course of their employment? (2) Whether Ramdas can claim compensation on the ground that he was partially depending upon him? 12. As regards (1) it is no doubt true as held by Mathew, L. j., in Benson Vs. Lancashire and Yorkshire Railway Company (1904) 1 King's Bench Division 242, that the protection given by the Workmen's Compensation Act is not confined to mere hours of manual labour and can even extend to intervals of leisure which may occur in the course of his daily employment, Where he is sent out on duty and is required to remain out of station in the course of his employment he is also entitled to rest during night at such a place as can be considered as the reasonable and proper place for so doing. But if he undertakes added peril by reason of any unnecessary or unreasonable act not connected with his duty or acts for his own purpose or convenience and the accident occurs it cannot be said that the same arose out of or in the course of his employment. 13. In Halsbury's Laws of England, Lord Hailsham Edition Volume 34, it is said: – "The burden of proof both that the accident arose out of and in the course of the employment rests in the first place upon the workmen or his dependants. If the proved facts give rise to conflicting inferences of equal probability, so that choice between them can only be arrived at by what amounts to a guess, then such a guess, though called an inference, arrived at in favour of the applicant will be set aside. The words 'arising out of the employment' means that, during the course of the employment injury has resulted from some risk incident to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. Where the workman, though during a time when the course of his employment is subsisting, does something entirely for his own purposes and thereby incurs a risk which causes an accident, he is not entitled to compensation. If the workman goes outside the sphere of his employment as defined by his employer he is not generally entitled to compensation if he sustains an accident whilst thus acting. If a workman sustains an accident whilst he is doing an act which is within his sphere of employment, the mere fact that he has acted negligently or failed to adopt the safes method of working will not deprive him of compensation. Where, however, whether from recklessness or from any other reason a workman does something which it was no part of his employment to do, and thereby incurs a risk to which he was neither required nor authorised to expose himself an accident so caused will not arise out of the employment." 14. In Lancashire and Yorkshire Railway Vs. Highly 1 Appeal Cases 352, Lord Summer observed: – "I doubt if any universal test can be found. In Lancashire and Yorkshire Railway Vs. Highly 1 Appeal Cases 352, Lord Summer observed: – "I doubt if any universal test can be found. Analogies, not always so close as they seem to be at first sight, are often resorted to, but in the last analysis each case is decided on its own facts. There is, however, in my opinion one test which is always at any rate applicable, because it arise upon the very words of the statue, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard to suffer, or to do that which caused his injury? If yes, the accident arose out of his employment. If may, 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 the accident 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." 15. It will be clear from the facts of the present case that the deceased workmen no doubt had to stay where the tractor had got stuck until the driver returned. The driver did not return till it was dark and they were under a duty to remain during the night with tractor. They however left it over a distance of about three quarters of a mile to the Railway Cabin because they were acquainted with Babulal Khalasi. They took their food there. This was perfectly proper and reasonable. But instead of returning to the tractor which they were bound to look after, they slept. Not only this, they for their own comfort and convenience kept the burning firepot inside the Railway quarter in spite of the warning given by Babulal to keep it outside. The surrounding circumstances together with the opinion of the medical man indicated that they died of the coal gas poisoning. 16. Not only this, they for their own comfort and convenience kept the burning firepot inside the Railway quarter in spite of the warning given by Babulal to keep it outside. The surrounding circumstances together with the opinion of the medical man indicated that they died of the coal gas poisoning. 16. It can in these state of things been rightly found that their sleeping at the Railway quarters, undertaking extra-hazard by keeping the burning fire-pot inside the closed room resulting in the fatal accident cannot be said to have occurred either out of or in the course of their employment. The initial burden resting upon the appellants is therefore is not discharged. 17. As regards the contention whether Ramdas was partially depending upon his son's earning, in view of the fact that Dhannalal was living with his parents and their family consisted of five more children, his wife was already dead and his income augmented the meagre earnings of his father, the learned Commissioner was right in holding that the father partially depended upon deceased Dhannalal. 18. However as a result of the finding that the death of the workmen had not occurred either out of or in the course of their employment the appeal is without force and is dismissed with costs.