JUDGMENT 1. - This is an employer's appeal under Section 30 of the Workmen Compensation Act, 1923 (here in after referred to as 'the Act') and is directed against an order of the Workmen Compensation Commissioner, Udaipur dated January 24, 1983, by which the appellant was directed to pay a sum of Rs. 18,000/- as compensation; Rs. 5,00/- as interest thereon and Rs. 86/- as costs (in all a sum of Rs. 23,486/-) to respondent No. 1 Ganeshlal. 2. Briefly re-called, the relevant facts giving rise to this appeal are that the deceased Mohanlal (aged about 23 years at the time of his death) was employed as a truck driver by the appellant Chetan Singh. The appellant had taken a contract for consolidation of earth on 'Somar Kala Aarna Project' in district Dungarpur. In the execution of the said work, Chetan Singh employed some tractors, one of which was RSK 1146. He had employed the deceased Mohan Lal as a driver on the said tractor on the monthly wages of Rs. 300/-. At about 5.00 p.m. on February 28, 1978, while Mohan Lal was driving the said tractor to toe a truck, the tractor turned up-side down. Mohan Lal fell down and was rolled-over and crushed by the tractor. It resulted in his death on the spot. It was alleged that the workman Mohan Lal met death by the accident arising out of and in the course of his employment with the appellant Chetan Singh. On the death of Mohan Lal, his father Ganesh Lal presented an application in the prescribed form before the Commissioner for Workmen's Compensation, claiming therein a sum of Rs. 18,000/- as compensation. The Executive Engineer, Irrigation, Somar Kala Aamla Project and the appellant Chetan Singh were impleaded as the persons liable for the payment of compensation. Notices were issued to both of them by the Commissioner. Both of them resisted the application and denied their liability to pay compensation to the petitioner Ganesh Lal. According to the Executive Engineer, the deceased Mohan Lal was not in the employment of the Irrigation Department. As such, the Irrigation Department was not liable to pay any compensation. The consolidation of earth work was given on contract to Chetan Singh. Both of them resisted the application and denied their liability to pay compensation to the petitioner Ganesh Lal. According to the Executive Engineer, the deceased Mohan Lal was not in the employment of the Irrigation Department. As such, the Irrigation Department was not liable to pay any compensation. The consolidation of earth work was given on contract to Chetan Singh. The deceased Mohan Lal was employed by Chetan Singh and that he met the death due to the accident arising out of and in the course of his employment with Chetan Singh. It was further stated that Mohan Lal had illegally took the tractor to toe down a private truck. This work of toeing the Truck was not connected with the work of the consolidation of earth. The appellant Chetan Singh, in his reply, denied all the averments made in the application. It was denied by him that the deceased Mohan Lal was in his employment on February 28, 1978 or at any time during his life time. It was one Gopal who was employed by him as a driver on his tractor RSK 1146. It was further stated that the applicant Ganesh Lal was not competent to submit the application for compensation as he was not dependent on the deceased Mohan Lal at the time of the accident. The Commissioner raised the necessary issues and recorded the evidence of the parties. The parties adduced evidence both oral and documentary in support of their respective allegations and counter-allegations. On the conclusion of the inquiry, the Commissioner recorded his findings as under: (1) The deceased Mohan Lal was employed as a driver by the appellant Chetan Singh on his tractor RSK 1146 ; (2) Mohan Lal was getting Rs. 300/- per month as wages from the appellant Chetan Singh ; (3) Mohan Lal died by the accident arising out of and in the course of his employment with Chetan Singh ; (4) The applicant Ganesh Lal was a dependent on the deceased Mohan Lal and was as such entitled to maintain the application for compensation, and (5) Since Mohan Lal was getting the sum of Rs. 300/-per month as wages, the employer viz., the appellant, Chetan Singh was liable to pay a sum of Rs. 18,000/- as compensation in accordance with the provisions of Section 4 read with Schedule IV of the Act. 3. 300/-per month as wages, the employer viz., the appellant, Chetan Singh was liable to pay a sum of Rs. 18,000/- as compensation in accordance with the provisions of Section 4 read with Schedule IV of the Act. 3. He accordingly directed the appellant to pay a sum of (a) Rs. 18,000/- as compensation, (b) Rs. 54,00/- as interest thereon at rate of Rs. 6% per annum and (c) Rs. 86/- as costs, totalling to Rs. 23,486/- to the applicant Ganesh Lal. The Executive Engineer of the Project was absolved from the liability of the payment of compensation. Aggrieved against the said order of the Commissioner, the employer Chetan Singh has come up in appeal. 4. I have heard Mr. D.S. Shishodia, learned counsel for the appellant, Mr. Pradeep Paliwal, learned counsel appearing for the applicant Ganesh Lal and Mr. S.K. Mathur, learned Deputy Government Advocate for the State. I have also carefully gone through the record of the case. 5. In assailing the award, Mr. Shishodia raised two contentions, (i) the deceased Mohanlal was toeing the truck which was not his job. In toeing the truck, he acted illegally and unauthorisedely and beyond the scope of his employment. If the truck capsided while toeing the truck, it cannot be said that Mohan Lal died by the accident arising out of and in the course of his employment and (ii) the applicant Ganesh Lal was not competent to file the application for compensation. The deceased Mohan Lal was a married person and his widow is still alive. The applicant Ganesh Lal could not prove that he was a dependent wholly or partly on the deceased Mohan Lal. 6. It would be proper to take up these contentions at seriatim. 7. Taking the first contention, it was vehemently contended by Mr. Shishodia that according to the evidence adduced by the parties and the findings recorded by the Commissioner, the deceased Mohan Lal illegally took the tractor RSK. 1146 to toe down a private truck. While Mohanlal was driving the tractor to toe a truck, the tractor capsized. Mohan Lal fell down and was rolled over by the tractor. Mohan Lal, thus, acted beyond the scope of his employment. He had no business to toe the truck. 1146 to toe down a private truck. While Mohanlal was driving the tractor to toe a truck, the tractor capsized. Mohan Lal fell down and was rolled over by the tractor. Mohan Lal, thus, acted beyond the scope of his employment. He had no business to toe the truck. As such, the finding of the Commissioner that Mohan Lal died by the accident arising out of and in the course of his employment, is erroneous and unsustainable. Mr. Paliwal, learned counsel appearing for the claimant Ganesh Lal, on the other hand, contended that Mohan Lal was employed by Chetan Singh in the work of the consolidation of earth. The employer had employed his tractor and drivers including the deceased Mohan Lal in the execution of that work. They all were working under the directions of the officers of the project. One Chhagan Lal, who was the Side Mistri in the Project, directed the deceased Mohan Lal to toe the truck. The truck which was being toed was also working at the Project. Since the deceased Mohan Lal toed the truck under the directions of the Side Mistri Chagan Lal, it must be maintained that Mohan Lal died by the accident arising out of and in the course of his employment with Chetan Singh. I have taken the respective submission into consideration. 8. Section 3 of the Act speaks about employers liability for compensation. Sub-section (1) of Section 3 reads as under: "3. Employer's liability for compensation : (1) If a personal injury is caused to a Workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter...." 9. A plain reading of Section 3(1) of the Act makes it abundantly clear that in order to give rise to a claim for compensation, the accident must be attributable to the workman's employment. The accident must have nexus to his employment. There must be a relationship a causal connection between the accident and the workman's employment. The expression "by accident arising out of and in the course of his employment" used in Section 3(1) affords a key for its applicability. The whole phrase has to be read together because the words have been used conjunctively and not dis-conjunctively. The injury must not only arise "in the course of" but also "within" the employment. The expression "by accident arising out of and in the course of his employment" used in Section 3(1) affords a key for its applicability. The whole phrase has to be read together because the words have been used conjunctively and not dis-conjunctively. The injury must not only arise "in the course of" but also "within" the employment. One should not be read isolated from the other. The claimant can succeed under the Act only when these twin conditions co-exist. The claimant has, thus, to prove that the accident was the direct out-come or the result of the 'employment' and "in the course of employment." Proof of one without the other will not entitle a claimant to bring the case under Section 3(1) of the Act. The difficulty, however, arises where the accident has taken place not as a result of the work entrusted to the workman but on account of the incidental work done by him. The phrase "by accident arising out of and in the course if his employment" should be given a wide scope and amplitude. The work "employment" should not be restricted as "work" entrusted. The intendment of Section 3(1) is that the workman should be in the employment of the employer. There are situations and situations where the workman is in the employment but may not be engaged in the work allotted or entrusted to him at the time of the accident. As such, the word "employment" should be given a wider meaning and scope then the work "word". The workman's employment is not confined to the actual task he is employed to work. It includes also matters incidental to that task. 10. The phrase "arising out of and in the course of employment" occurring in Section 3(1) has been taken from the English Act of 1897. On page 97 of Commentaries on Workmen's Compensation Act, 1923 by K.D. Srivastava (1984 Edition), the law on this expression, after noticing various English and Indian decisions, has been summed up as under: "It may be significant to note that the section, uses the word "employment" and not 'work' and the word 'employment' has a wider meaning than the word 'work'. A man may be in the course of his employment without being actually engaged on work for the doing of which he is engaged. A man may be in the course of his employment without being actually engaged on work for the doing of which he is engaged. A workman acts in the course of his employment not only when he is engaged in doing something in discharge of a duty to his employer which is directly or indirectly imposed upon him by his contract of service but also when he is engaged in acts belonging to and arising out of it. "The language is of wide amplitude to cover not only the nature of the employment but also its character, conditions obligations, incidents and special risks." Thus, what is required for a claimant to prove under Section 3(1) of the Act is that the workman was in the employment of the employer and the accident arose out of and in the course of his employment. To put the whole matter into simple words, the accident must have a nexus with the employment. 11. Adverting to the instant case, the claimant's stand which has been taken as proved by the Commissioner is that the deceased workman Mohan Lal was employed as a driver on tractor RSK 1146 by the appellant Chetan Singh. Chetan Singh had a contract with the Irrigation Department for the work of the consolidation of earth. He had employed four tractors, including tractor RSK 1146, for carrying out the said work under the contract. PW 2 Chandrabhan Singh stated that some trucks of the other contractors were also working at the site of this project. The deceased workman Mohan Lal was employed as driver by the appellant at his tractor RSK 1146. One of the trucks got stuck in the sand. Chhagan Lal, who was. the Side Mistri in the Irrigation Department, directed the deceased workman Mohan Lal to toe that truck. Mohan Lal accordingly took his tractor to that truck and toed it. While he was toeing the truck with his tractor, the tractor capsized. Mohan Lal fell down and was rolled over and crushed by the tractor. PW 3 Ramesh Chandra likewise deposed that the Mistri of the Irrigation Department directed the deceased Mohan Lal to toe the truck. Mohan Lal accordingly took the truck. While Mohan Lal was toeing the truck, the tractor turned up side down. Mohan Lal fell down and was run over by the tractor Mr. PW 3 Ramesh Chandra likewise deposed that the Mistri of the Irrigation Department directed the deceased Mohan Lal to toe the truck. Mohan Lal accordingly took the truck. While Mohan Lal was toeing the truck, the tractor turned up side down. Mohan Lal fell down and was run over by the tractor Mr. B.L. Ahuja, who was the Assistant Engineer in the Irrigation Department on the site, deposed in his cross-examination that the truck, which was toed by the tractor of the deceased was also working on the site of the project. It would be useful to quote the relevant passage of his statement in his own words: Okg V~d ftldks V~SDVj ls [khapk x;k Fkk] og Hkh gekjs lkbZV dk FkkA Not, only so, even the appellant Chetan Singh himself admitted in his cross-examination that the truck which was toed, was working on the site and was unloading the sand of the Irrigation Department. To quote him in his own words: V~d ogka ij foHkkx dh feV~Vh ctjh Mky jgk Fkk A 12. It is, thus, amply clear from the evidence adduced by the parties that the deceased Mohan Lal, who was employed by the appellant on his tractor RSK 1146 was directed by the side Mistri of the Irrigation Department to toe the truck. The truck was also working on the site of the Project. Thus, the workman Mohan Lal was working at the directions of the Side Mistri of the Irrigation Department, under whom he was bound to work while discharging his duties as a driver on the tractor. The proved facts and circumstances of the case leave no room for doubt that the deceased workman Mohan Lal met death by accident arising out of and in the course of his employment. There was, thus, a direct Nexus a causal connection between the accident and the deceased's employment. There is no substance in the contention of Mr. Shishodia that in toeing the truck the deceased Mohan Lal acted beyond the scope of his duties. The evidence adduced by the parties fairly shows that the act which led to the accident was without the sphere of the workman's duties and not beyond them. The first contention of Mr. Shisodia, thus, falls. 13. Coming to the second contention raised on behalf of the appellant it was argued that the applicant Ganesh Lal was not competent. The evidence adduced by the parties fairly shows that the act which led to the accident was without the sphere of the workman's duties and not beyond them. The first contention of Mr. Shisodia, thus, falls. 13. Coming to the second contention raised on behalf of the appellant it was argued that the applicant Ganesh Lal was not competent. to file an application for compensation. It was contended that the deceased workman Mohan Lal was a married person and his widow is still alive. The Applicant Ganesh Lal has neither alleged not proved that he was a dependent wholly or partly on the deceased Mohan Lal. I have examined the contention thoroughly and find it barren of force. 14. The application for compensation has been presented by Ganesh Lal, describing himself as the father of the deceased workman Mohan Lal. In the application for compensation, Ganesh Lal, in para 2, has clearly stated that he is dependant being the father of the deceased workman. A 'dependent' has been defined in Section 2(l)(d) of the Act. Sub-clause (d) enumerates three categories of dependents. Category III deals with those persons who are wholly or in part dependent on the earning of the workman at the time of his death. A parent other than a widow mother is among such dependents coming in category III. The dependents coming under Sub-clause (iii) have to establish the relationship mentioned therein and further that they were wholly or in part dependents on the earning of the deceased workman at the time of his death. Dependence in part is sufficient to maintain an application for compensation under the Act. Whether a person is partially dependent on the earning of a deceased workman is a matter essentially of fact. It is the circumstances of each case which decide the factum of dependence. 15. Applicant Ganesh Lal deposed in his cross examination that the deceased workman Mohan Lal, who was his son, was living with him. They all constituted a joint Hindu family. He further deposed that Mohan Lal was married person and his wife was also living with the joint family. The widow of Mohanlal is still living in the joint family. He also stated that he has only ten Bighas of land for cultivation. He earns this livelihood by agriculture and largely depends on alms for the maintenance of the joint family. The widow of Mohanlal is still living in the joint family. He also stated that he has only ten Bighas of land for cultivation. He earns this livelihood by agriculture and largely depends on alms for the maintenance of the joint family. It is thus evident that the deceased Mohan Lal was living with the applicant and was contributing to the fund of the joint family for the maintenance of the members. His widow is still living with the applicant. In these circumstances the approach of the Commissioner that the applicant was a dependent on the deceased workman appears to be correct. Applicant Ganesh Lal also deposed in his cross-examination that the widow of the deceased workman Mohan Lal is a minor and as such she was not impleaded as party in the claim proceeding. The applicant Ganesh Lal is, thus, entitled to file the application for compensation. It was contended by Mr. Shishodia that in the life time of the widow of the deceased workman, the father of the workman is not entitled to file the application for compensation. There is no substance in the contention. There is no provision in the Act to show that first category of dependents enumerated in Clause (10) (d) excludes the dependants of category II and dependents enumerated in category II excludes the dependents enumerated in Clauses (iii). The provisions relating to the dependents enumerated in Clause (i) (d) of the Act are not to be applied like the provisions of Section 6 of the Hindu Succession Act, where one category of the heirs excludes the other category of heirs. What is required to maintain an application under the Act in that the dependent filing the application must have a relationship as enumerated in Clause (d) and must be dependent wholly or partly on the deceased workman. The Act does not contemplate any preferential right amongst dependents to maintain in the claim application. In New India Assurance Company Ltd. v. Nensingh and Ors. 1984 (Vol. 1) Labour Law Journal 186 , a learned Single Judge of the Madhya Pradesh High Court, dealing with a like situation, observed as under: However the definition of 'dependent' under Section 2 of the Act is an inclusive definition which uses the word 'any'. In New India Assurance Company Ltd. v. Nensingh and Ors. 1984 (Vol. 1) Labour Law Journal 186 , a learned Single Judge of the Madhya Pradesh High Court, dealing with a like situation, observed as under: However the definition of 'dependent' under Section 2 of the Act is an inclusive definition which uses the word 'any'. The dependents in the said definition are not classified in different categories like 1, 2 and 3 not the said definition nowhere provides that the dependent mentioned in category No. 1 alone will have the right to claim the compensation and in absence there of the persons mentioned in the other categories can file the petition for compensation. 16. I find myself in complete agreement with the aforesaid view. 17. There is yet another aspect of the matter. When the compensation is deposited by the employer, Section 8 of the Act casts a duty on the Commissioner to distribute the amount of contribution amongst dependents. The work of distribution of compensation amongst the various dependents of the deceased workman has not been done so far and is still to be done. The Commissioner is still to call-upon the dependents to appear before him for determining the distribution of the compensation. The widow of the deceased workman may, thus, get the amount of compensation to which she is found entitled. 18. No other contention services. 19. For the reasons discussed above, I find no force in this appeal. The appeal is consequently dismissed with costs.Appeal dismissed with costs. *******