JUDGMENT - Dr. D.Y. CHANDRACHUD, J.:---This is an appeal, under section 30 of the Workmen's Compensation Act, 1923, against an order dated 10-4-1997, passed by the Ex-officio Commissioner of Workmen's Compensation Judge of the Labour Court at Aurangabad. By the impugned order, the respondent, who was the applicant before the Commissioner for Workmen's Compensation, has been granted compensation in the amount of Rs. 27,210/- along with penalty and interest, as directed in the impugned order. 2. Briefly stated, the material facts of the case are that the deceased Laxman Nana Pawar was alleged to be a 'workman', employed by the appellant. The case of the respondent was that on 7-1-1986, the workman received a personal injury, in an accident arising out of and in the course of employment which resulted in his death. The cause of injury alleged was that while the deceased was taking a bullock cart full of cotton bales to the market, it met with an accident and he fell down from the cart. The respondent was alleged to be the widow of the deceased. In the application, it was stated that the monthly wages of the deceased were Rs. 400/- and his age, at the time of the accident, was 45 years. Compensation, in the amount of Rs. 27,240/-, together with penalty and interest, was claimed. 3. The appellant filed his written statement and stated therein that he had a small piece of agricultural land where he, with the help of his family, carries on agricultural operations and contended that "as such, the provisions of the Workmen's Compensation Act are not applicable." Apart from the aforesaid averments in para 2 of the written statement, in para 7 it was averred that "the provisions of the Workmen's Compensation Act are not applicable to the opponent as the deceased was not in the employment of the opponent and as the applicant is not a legal heir or widow of the deceased" In para 10 of the written statement, it was sought to be submitted that on 7-1-1986, the deceased was sitting on cotton bales which were filled in the bullock cart, The bullock cart was stated to be driven by a young person. It was alleged that due to a heart attack the deceased fell down and died. The body was sent to the Govt. hospital for post-mortem. 4. It was alleged that due to a heart attack the deceased fell down and died. The body was sent to the Govt. hospital for post-mortem. 4. Evidence was adduced before the learned Commissioner by both the parties. By his impugned judgment and order dated 21-4-1997, the learned Judge came to the conclusion that the respondent was the legally wedded wife of the deceased and she was entitled to maintain the application for compensation. The learned Judge also held that the deceased was a workmen engaged by the appellant as his "Saldar" and that the accident had occurred in the course of his employment. The learned Judge held that the deceased was a 'workman' within the meaning of section 2(n) of the Workmens Compensation Act, 1923 read with Entry 29 of Schedule II of the Act. In the circumstances, compensation in the amount of Rs. 27,210/- was directed to be paid along with penalty quantified at 10% and interest in the amount of 6%. 5. Section 30 of the Workmen's Compensation Act, 1923, provides that an appeal shall lie to the High Court, inter alia, against an order of the Commissioner awarding as compensation lump sum whether by way of a redemption by a half monthly payment or otherwise or disallowing any claim in full or in part for a lump sum. The appeal under section 30 lies only if a substantial question of law is involved in the appeal. In view of the provisions of section 30 of the Workmen's Compensation Act, 1923, the learned Counsel appearing on behalf of the appellant, rightly, did not press for consideration before this Court any of the factual determinations which have been made in the impugned order passed by the learned Commissioner. The submission which, however, was urged was that before the claim for compensation could be allowed under the provisions of Workmen's Compensation Act, 1923, it ought to have been established that the person concerned was a workman. In this case, the submission was that the deceased was not a workman. 6. Section 3 of the Workmen's Compensation Act, 1923, provides for the liability of the employer for compensation, if a personal injury is caused to a workman, by an accident, arising out of the and in the course of his employment. Section 2(n) of the Workmen's Compensation Act, 1923, defines the expression "workman", as follows. 6. Section 3 of the Workmen's Compensation Act, 1923, provides for the liability of the employer for compensation, if a personal injury is caused to a workman, by an accident, arising out of the and in the course of his employment. Section 2(n) of the Workmen's Compensation Act, 1923, defines the expression "workman", as follows. " 'Workman' means any person (other than a person and whose employment is of a causal nature and who is employed otherwise than for the purpose of the employee's trade or business), who is:--- (i) a railway servant as defined in Clause (34) of section 2 of the Railways Act, 1989 (24/1998) not permanently employed in any administrative, district or sub divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (a) a master seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing, but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workmen who has been injured shall, where the workmen is dead, include a reference to his dependents or any of them. 7. Schedule II of the Workmen's Compensation Act, 1923, contains a list of persons who, subject to the provisions of section 2(1)(n) of the Workmen's Compensation Act, 1923, are included in the definition of 'workman'. Entry (xxix) thereof provides as follows: "employed in farming by tractors or other contrivances driven by steam or other mechanical power or by electricity.." The entry has since been enlarged by Amending Act 30/1995, which was brought into force on 15-9-1995. Entry (xxix) thereof provides as follows: "employed in farming by tractors or other contrivances driven by steam or other mechanical power or by electricity.." The entry has since been enlarged by Amending Act 30/1995, which was brought into force on 15-9-1995. Prior to its amendment, the entry, as it originally stood, related to a person employed in farming by tractor or other contrivances driven by steam or other mechanical power or by electricity. Though the present case will be governed by the pre-amended entry, ultimately the question is, as to whether the workmen, as contended by the learned Counsel for the appellant, was or was not employed in farming by tractor or other contrivances driven by steam or other mechanical power or by electricity. 8. In allowing the claim for compensation, in the present case, the Commissioner has held that a contrivance within the 'meaning of Entry (xxix) is a device'. The view, which has been arrived at by the learned Commissioner is as follows:--- "25. The Court has seen that as per dictionary meaning 'Device' provided by mechanical powers that exactly does not comply to the facts and circumstances in letter and spirit that the bullock cart propelled by the mechanical power. But, I am of the considerate opinion on the strength of settled principle of law; from the catena of judgments of the Apex Court of the Land and of our Hon'ble Bombay High Court in number of judgments : if the nexus is established; the principle of "Natural Extension" is established to that of the accident; and to that of the opponent as an 'employer'; then the causal connection is treated to be established here in this matter before this Court. The applicant has successfully proved her case and established her case that the deceased has no casual relation with the opponent, but the deceased was the employee/workman of the opponent at the material time of the accident, as it has been admitted by the opponent through the independent Documentary Evidence produced on record by the applicant i.e. spot panchanama, Post Mortem Report and through her evidence at Exh. 0-3. The documents on record speak more louder than the oral evidence on record of the opponent. After considering the principle of law as laid down in the judgment (supra) as referred to and relied by the Ld. Advocate of the applicant. 0-3. The documents on record speak more louder than the oral evidence on record of the opponent. After considering the principle of law as laid down in the judgment (supra) as referred to and relied by the Ld. Advocate of the applicant. Accordingly, I answer these issue, in favour of the applicant." 9. From the provisions of section 3 of the Workmen's Compensation Act, 1923, it is clear that in order to sustain a claim for compensation, the injury must be caused to a workmen by an accident, arising out of and in the course of his employment. The death or injury has to be to a workman in order to sustain the claim of compensation. There has to be a nexus between the injury and the employment; the former must arise out of and in the course of the latter. Section 2(n) of the Workmen's Compensation Act, 1923, defines a person who is a 'workman'. In order to be a 'workman', under Clause 2(n), the person must be employed in one of the capacities specified in Schedule II of the Workmen's Compensation Act, 1923. A person, whose employment is of a causal nature and who is employed other than for the purpose of the employer's trade or business, is excepted from the category of 'workman'. Entry (xxix) of Schedule II covers employment in farming by tractor or other contrivances driven by steam or other mechanical power or by electricity. Parliament has restricted the operation of Entry (xxix) to employment by framing by specified modes. The object and purpose of the Legislature was, obviously, therefore not to cover persons engaged in all kinds of farming, but to cover cases where the farming is being carried out through one of the specified modes. The first mode is farming by tractor. This is followed by a residuary clause, which refers to farming by other contrivances driven by steam or other mechanical power or by electricity. The expression 'other contrivances' would, as the learned Commissioner has observed, cover 'other devices', through which, farming is carried out. But, that by itself is not sufficient because what the entry provides is that these contrivance must be driven by steam or other mechanical power or by electricity. The expression 'driven by' means the motive force or the means of propulsion. But, that by itself is not sufficient because what the entry provides is that these contrivance must be driven by steam or other mechanical power or by electricity. The expression 'driven by' means the motive force or the means of propulsion. Therefore, employment in farming, by a contrivance other than a tractor, would invite the application of the said entry, if the contrivance is driven by steam or other mechanical power or by electricity. The words of Entry (xxix), it is true, ought not to be given a narrow or restricted operation. At the same time, it would be necessary to bear in mind the circumstance that the Legislature has specified three sources, which constitute the motive force for the operation of contrivances used in farming. There can be no doubt about the fact that the Legislature was conscious of the fact that the bullock cart is almost a universally deployed vehicle for use in farming in our country. However, even if the language of Entry (xxix) was to be stretched, it cannot, in my view, incorporate the use of the bullock cart as a contrivance driven by "other mechanical power". The bullock cart is driven by the motive force of an animal to which it is yoked and not by mechanical power. The cart by itself, may, incorporate elements which work on mechanical principles, yet, the cart is not driven by mechanical power, but, by the power of an animal to which it is attached. Therefore, the use of the bullock cart would not bring in the application of Entry (xxix). 10. However, having heard the learned Counsel for the parties I am, of the view that the matter cannot rest with correcting the view which has been taken by the learned Commissioner on the scope of Entry (xxix). The learned Counsel appearing on behalf of the respondent made a grievance of the fact that neither in the written statement nor in the evidence of the witnesses of the appellant was any plea advanced to the effect that the farming in the present case was not being carried out by tractor or other contrivances driven by steam or other mechanical power or by electricity. The only point, which was sought to be urged before the learned Commissioner, was that there was no relationship of employer and employee and that the claimant was not the legally wedded wife of the deceased. On the other hand, the learned Counsel, appearing on behalf of the appellant, submitted that the question as to whether the person is a 'workmen' is a jurisdictional fact, which goes to the root of a claim for compensation under the Workmen's Compensation Act, 1923. Consequently, it was necessary for the claimant to establish, in the first instance, that the deceased was a 'workmen', within the meaning of the Workmen's Compensation Act, 1923. The learned Counsel, appearing on behalf of the appellant, conceded that if an exception from the definition of the phrase 'workman' is to be established, the burden to do so, would lie on the employer. Therefore, in a given case, if the defence of the employer is that the person concerned is engaged in employment of a casual nature or that he was employed otherwise than for the purpose of the employer's trade or business, the burden of establishing the exception would lie on the employer. On the other hand, it was sought to be urged that the initial question, as to whether the workmen has been engaged in one of the capacities specified in Schedule II of the Workmen's Compensation Act, 1923, has to be established by the claimant for compensation. On this issue, in the application before the Commissioner, it was stated that the deceased was a 'workman' employed by the appellant herein. The defence of the appellant was that (i) there was no relationship of employer and employee between the respondent and the deceased person and (2) the claim before the Commissioner was made by a person who was not the legally wedded wife of the deceased. The point that the respondent was not carrying on farming in any way of the modes specified in Entry (xxix) was not specifically raised in the written statement. In this view of the matter, I am of the view that the question of law, which has been sought to be canvassed on behalf of the appellant before this Court, was without laying the foundation of fact before the learned Commissioner. The respondent had averred that the deceased person, in respect of whose death she claimed compensation, was a 'workmen'. The respondent had averred that the deceased person, in respect of whose death she claimed compensation, was a 'workmen'. The question as to the applicability of Entry (xxix) would have arisen if that question was put in issue and a dispute was raised on behalf of the appellant. The appellant in his written statement has not placed in issue the question as to the applicability of Entry (xxix) at all. In these circumstances, when no dispute was raised by the appellant in regard to the applicability of Entry (xxix), in the first instance, it would not be appropriate for the appellant to now contend particularly within the parameters of an appeal under section 30 that the respondent had not discharged the initial burden of proving the applicability of Entry (xxix). The question of the respondent leading evidence to establish employment in the capacity set out in Entry (xxix), would have arisen if that was placed in issue by the appellant. This not having been done, I am of the view that the award of compensation in the facts circumstances cannot be faulted. I thus affirm the operative order passed by the learned Commissioner, in the facts circumstances of the present case. 11. The first appeal is accordingly disposed of in the aforesaid terms. There shall be no order as to costs. Order accordingly. -----