<NAME>, J.

1. By this judgment we propose to dispose of two appeals under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter called 'the Act'), namely Misc. Appeal (F) 37 and Misc. Appeal (F) 38 of 1968, arising out of Motor Accident Claims Cases Nos. 99 and 100, respectively, of 1966. which were disposed of by a common judgment dated 6-6-1968 by the Member of <ORG>. <NAME>.

2. The above two claims cases arose out of the same accident in which six persons travelling in a bus bearing No. ASA 3482 belonging to <ORG> (respondent No. 1) were killed, the bus being knocked off by the engine of a running train while crossing the railway lines at Noonmati Railway level crossing. The bus was engaged at that time by <ORG> for transporting some of its employees residing in Gauhati town to and from their residence during the lunch hour and all the six victims were such employees.

3. It may be mentioned here that <ORG> had contracted with <ORG> that the latter's Motor Bus No. ASA 3310 would resularlv carry the former's employees at the lunch time from the Pine Line Office at Bamuni Maidan to Gauhati town and then carry them back after their lunch to the Pipe One Office. On the date of accident the bus No. ASA 3310 having gone out of order <ORG> <ORG> arranged the bus No. ASA 3482 belonging to <ORG> for carrying the employees of <ORG> during lunch to and from their residence.

4. Claim Case No. 99 of 1966 was filed by <NAME> on behalf of herself and her two minor sons claiming a sum of Rs. 75,000 as compensation for the death of her husband late <NAME> one of the victims of the aforesaid, accident. He was aged 32 years and six months at the time of his death and he used to draw Rs. 405/- as his monthly salary. In Claim Case No. 100 of 1966 the claimant is the widow of late <NAME>, another victim of the accident. He was aged 63 years at the time of his death and his monthly salary at that time was Rs. 310/-. The claimant <NAME> in this case has claimed a sum of Rs. 20,000/- as compensation. In both the cases the owner of the ill-fated bus No. ASA 3482. namely <ORG> <ORG> was arrayed as opposite party No. 1 and the insurer of the vehicle <ORG> <ORG> was arrayed as opposite party No. 2.

5. Both the opposite parties filed their written statements, separately, and contested the cases. There is no dispute about the death of those two persons in the accident as mentioned above. There is also no dispute that the bus No. ASA 3482 was involved in the accident and that this bus belonged to opposite party No. 1 and stood insured with opposite party No. 2. The fact that late <NAME> and late <NAME> were employees of <ORG> at the relevant time and that the former drew a monthly salary of Rs. 405/- and the latter drew a monthly salary of Rs. 310/- was also not denied. The opposite parties, however, denied their liability to pay any compensation to the claimants. According to opposite party No. 1, the accident took place not due to any defect of the motor bus, nor due to any negligence or misconduct on the part of its driver, but due to the negligence of the <ORG> authority in leaving the gate at the level crossing unmanned. The claims were also resisted on the ground of limitation, non-joinder and mis-joinder of parties. The opposite party No. 2 pleaded that the vehicle in question (ASA 3482) was used at the relevant time in violation of the terms and conditions of the policy under which it stood insured in that the bus which was insured as stage carriage was used as a contract carriage and it plied on a route which was beyond the limits of the area prescribed in the permit granted by the authority, namely, <ORG>. It was also alleged that each of the claimants was paid Rs. 4,000/- as compensation by <ORG> and that they were, therefore, not entitled to any further compensation from the opposite parties. At any rate their claims were said to be highly inflated.

6. Upon the pleadings the following issues were tried :--

(1) Whether the application is maintainable in its present form and in law ?

(2) Whether the application is bad and fatal for non-joinder of necessary parties as required by Section 110 (b) (c) of M. V. Act ?

(3) Whether the vehicle in question was plied at the time of the accident according to the terms and conditions of the Insurance Policy ?

(4) Whether the vehicle in question was Plied according to the Road Permit and permit conditions ?

(5) Whether the driver had valid licence to drive the vehicle in question at the time of the accident ?

(6) Whether M<ORG> paid any compensation to the claimants ? If so, are the claimants entitled to any further compensation as claimed and against whom ?

(7) Whether the accident was the result of rash and negligent driving of the bus No. ASA 3482 ?

(8) To what relief are the parties entitled ?

7. As most of the material witnesses were common in both the eases, these were disposed of, along with another similar case, by a common judgment by the learned Member of <ORG>. On a consideration of the evidence adduced by the parties the <ORG> answered all the issues, except the issue No. 7 mentioned above, in favour of the claimants. As a result of its finding on the last issue, which was answered in the negative, the <ORG> has dismissed the claims of both the petitioners. They have accordingly come up with the present appeals.

8. Mr. <NAME>, the learned counsel for the appellants, submitted before us that the finding of the learned Member of the <ORG> that there was no negligence on the part of the driver of the vehicle is against the weight of evidence. According to him upon the evidence on record the learned Member of the <ORG> should have held that the accident took place as a result of gross negligence of the driver and he should have granted compensation, as prayed for, to both the appellants.

9. The learned counsel appearing for <ORG> (respondent No. 1), on the other hand, submitted that the above finding of the learned Member of the <ORG> is quite justified and calls for no interference in appeal. It was also contended by him that the accident took place due to the negligence of the Railway authority and as such the claims are liable to is dismissed for non-joinder of the Railway administration as a party. The claims were also resisted on the ground that these are highly inflated. The first contention of the learned counsel for the respondent No. 2 (<ORG>) was that the company having been nationalised in the meantime, <ORG> should have been substituted as respondent in place of the present respondent No. 2 and that no decree can be passed against this company. It was also contended by him that at any rate the liability of the company for each person who died in the accident is limited to Rupees 2,000/- only under the provisions of Section 95 (2) of the Act, as it stood at the relevant time. The findings of the <ORG>, however, on the other issues were not challenged before us on behalf of the respondents.

10. The points which require determination in this appeal, therefore, are--(1) Whether the claim petitions are bad for non-joinder of the Railway administration? (2) Whether the accident took place as a result of rash or negligent driving of the bus No. ASA 3482 ? (3) To what amounts, if any, the appellants are entitled as compensation and (4) Whether the respondent No. 2 is liable to pay any compensation and if so, to what extent ?

11. Sections 110 to 110-F of the Motor Vehicles Act were introduced by Act 100 of 1956. Prior to this, compensation could be claimed by institution of suits for damages only through the medium of <ORG> on payment of ad valorem Court-fee. This group of sections furnish a self contained code that the claims can be lodged on the basis of an application without ad valorem court-fee. The object of this group of sections is to supply a cheap and expeditious mode of enforcing liability arising out of claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use, of motor vehicles or damages to any property of a third party so arising. Claims tribunals have been constituted under the provisions of Section 110(1) of the Act, which is in the following terms:--

"110. Claims Tribunals.-- (a) A State Government may by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both.

* * *" Section 110-B speaks of the award of <ORG>. It runs -as follows:--

"110-B. Award of <ORG> receipt of an application for compensation made under Section 110-A , <ORG> shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be."

Section 110-F bars the jurisdiction of <ORG>. It runs thus:

"110-F. Bar of jurisdiction of Civil Courts.--Where <ORG> has been constituted for any area, <ORG> shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by <ORG> for that area, and no injunction in respect of any action taken or to be taken by or, before <ORG> in respect of the claim for compensation shall be granted by <ORG>."

12. From the scheme of this group of sections it will be clear that the claims tribunals have been constituted to deal with the claims for compensation for death of or injury to persons arising out of use of motor vehicles. The <ORG> has got no jurisdiction to enforce any such claim against any other person or authority except the owner, the driver and the insurer of the motor vehicle involved in the accident, as will be evident from the provisions of Section 110-B . That being the legal position, there was no scope for the petitioners to implead <ORG> in these proceedings before the Claims <ORG>. If they have been able to prove that the accident arose out of any negligence or rashness in the use of the motor vehicle, they will succeed--otherwise they will fail. In this view of the case I hold that the claim petitions are not bad for non-joinder of <ORG>.

13. Let me now came to the next and the most important point for determination, viz., whether or not the accident took place due to any rashness or negligence on the part of the driver. The initial burden to prove such negligence or rashness is undoubtedly on the claimants. In the instant cases the appellants examined 3 witnesses, namely <NAME>, <NAME> and <NAME>, who were inside the vehicle at the time of the accident and received injuries. <NAME> and <NAME> were examined twice--once in Claim Case No. 99/66 and again in Claim Case No. 100/66. All of them stated in their evidence, and it is not denied, that the bus was knocked off by a running <ORG> engine on the line when it was going to cross the <ORG> line at the level crossing at Noonmati, where there is no gate. In Claim Case No. 99/60 <NAME> said that when the bus was on the <ORG> line at the level crossing, they saw a train coming from Narangi side towards Gauhati. According to him the train was at a distance of about 20 yards from the bus at that time. When the train approached very near, he said, the driver jumped out and ran away leaving the bus on the line and meanwhile the train dashed against the bus. While giving evidence in Claims Case No. 100/66 this witness said:-- "When we reached the level crossing near <ORG>, I saw a train coming from Narangi side. We the occupants then shouted that a train was coming. In spite of that the bus forwarded towards the <ORG> lines. When the bus was on the <ORG> lines the train knocked at the bus, with the result many persons of the bus were injured and two died." In cross-examination he further stated:-- "We shouted when the bus reached the entrance of the level crossing which will be about 10/12 yds. from the <ORG> lines." <NAME> stated in his evidence that when he first saw the train, it was at a distance of about 100 yards from the bus. <NAME> stated in his evidence in both the cases that before the bus came on the <ORG> line, the driver of the bus was asked by some people sitting on the vehicle standing on the other side of the <ORG> lines not to cross the level crossing by raising hands signalling thereby to stop. But in spite of this the bus was taken on the <ORG> line when it was knocked by the train.

14. The learned Member of the <ORG> was unable to hold, upon the evidence of these witnesses, that the driver was negligent. He has observed in his judgment --"From the evidence of these witnesses, namely <NAME>, <NAME> and <NAME> it is evident that they saw the coming train only when the danger was quite at hand and not at any earlier stage. This would also suggest that the driver of the ill-fated bus also did not himself see the coming train well in time when he could avoid the accident," As regards the evidence of <NAME> regarding the signal given by some persons from the opposite side of the railway line, the learned Member of the <ORG> has observed--"I am far from impressed with this part of the evidence of this witness. If such a signalling was at all given by some persons (none of such persons is before UK) from the other side of the Railway lines, it did not very likely attract the notice or attention of the driver of the ill-fated bus (A. S. A. No. 3482) or else the driver would not, as one ordinarily would not, come to embrace his death or take the risk of his life at all."

15. I am unable to agree with the above view of the learned Member of the <ORG>. In my opinion the question as to how long before the accident and at what distance the above witnesses saw the running train is not very relevant for the purpose of determining the negligence of the driver. There was no obligation on these, witnesses, as passengers, to keep a look out for other traffic. Moreover, their seeing or not seeing the train depended on various factors, such as the position of their seats in the bus, whether they were attentive to the outside or engrossed in conversation with other co-passengers etc. But that could not be so with the driver. His view could not be obstructed by anybody and it was his duty to look out for other traffic which was or might be expected on the road, whether in front of him, behind him or along side of him, specially at cross roads, junctions and bends. It is the duty of the driver to take reasonable care that the passengers travelling in the bus do not receive any injury during the journey. To achieve this object it is necessary for him to be on the look out for any possible obstruction on the road and to take necessary steps to avoid any such obstruction without causing any injury to the passengers.

16. It was contended by the learned counsel for the respondent No. 1 that there is an obligation on the part of <ORG> to ensure that whenever the train passes over a thoroughfare, adequate warning should be given to the public of the passing of the train at the time so that any such accident may be avoided and that failure to do this amounts to a negligence on the part of <ORG> and in such circumstances, if any accident, with a motor vehicle takes place, the driver cannot be held responsible. In support of this contention reliance was placed on the case of <CITATION> 1963 Assam 117. In my opinion this case has got no bearing on the present case. In that case it was found that the Railway line crossed a busy thoroughfare at such a place that the coming train could not be seen due to a house, trees and shrubs near the road and the line and it was only when the members of the public using the road came on to the Railway line that they could be in a position to know that a train was approaching. In such circumstances it was held by <ORG> in the above case that the motor driver was not liable. In the present case there is no evidence at all that there was any obstruction between the road and the Railway line to the east of the level crossing from which direction both the bus and the train were proceeding. On the other hand the sketch map of the place of accident Ext. F, which was prepared and proved by <NAME>, Claims Inspector of the respondent <ORG>, shows that there was no such obstruction. As can be judged from this map the Railway line is running almost parallel to the road by which the bus was proceeding for some distance except for a curve at the level crossing which is also not very sharp. The distance between the Railway line and the road is also not much. The witness <NAME>, who prepared the map, took care to show the houses and other structures to the west and north of the place of accident. There is nothing to indicate that there was any such structure or obstruction on the other side, that is, from the side from which the train as well as the bus was coming. Nothing was elicited from the witnesses examined in the case on behalf of the respondents about the existence of any house, trees or other things obstructing the view of the Railway line from the road near the level crossing in question.

17. In the instance case the level crossing was admittedly unmanned and there was no gate. With regard to the duty of a driver of a motor vehicle before crossing such an unmanned level crossing <ORG> in <CITATION> , 1972 Acc CJ 140 = (AIR 1972 SC 685) observed:--

"Where a level crossing is unmanned, it may be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and thereafter only drive his vehicle after satisfying himself that there was no danger in crossing the railway track."

18. Had the driver of the ill-fated bus taken such precautions, before crossing the level crossing, I am sure the accident could not take place. In the instant case we find from the evidence of <NAME>, who is a disinterested witness, that some people gave signal to, the driver from the other side of the Railway line to stop the vehicle, but he paid no heed. The driver cannot be exonerated by saying, as the <ORG> did, that such signal might not have attracted the notice or attention of the driver. As I have already pointed out, it is the duty of the driver especially at cross roads, junction and bends to look out for other traffic which is or may be expected on the road.

19. In such a case the driver is the best person to say as to how the accident took place. It is an admitted fact that the driver of the ill-fated bus ASA 3482 escaped death by jumping out of the vehicle before it was knocked down by the train. He was admittedly an employee of the respondent No. 1. There is no evidence on record to show that the respondent No. 1 made any attempt to produce him in court for his evidence. Nor there is any evidence to the effect that he has since left his job under respondent No. 1 and his whereabout is not known. Evidently he was withheld from the witness box by the respondent No. 1. In such circumstances it will not be unreasonable to draw an adverse presumption against the owner of the vehicle for withholding the driver from the witness-box, without any explanation. <CITATION> , 1972 Ace CJ 79 = (AIR 1972 Ker 159) it was held that non-production of the driver by the owner of the vehicle raises an adverse presumption against the owner.

20. From the facts and circumstances emerging from the evidence of the 3 P. Ws. mentioned above, particularly from the evidence of <NAME> and also from the map Ext. F, -which was exhibited by the respdt. No. 2, it is abundantly clear that the accident took place as a result of gross negligence and rashness on the part of the driver of the vehicle. It is quite clear from the circumstances of the case that the driver, even on the face of the approaching train, took the hazard of crossing the Railway line with the hope and belief that he would be able to cross it in time. This was evidently and undoubtedly an act of rashness on his part. In this view of the case, I feel constrained to hold that the unfortunate accident Was the result of rash and negligent driving of the motor bus and so the appellants are entitled to get compensation.

21. The next question that falls for determination is the quantum of compensation to which the appellants are entitled. As observed by <NAME>, C. J., in <CITATION> , 1972 Acc CJ 92 = (AIR 1973 <NAME> 33):--

"Despite a self-contained code of procedure of adjudication of claims being provided, the ( Sections 110 to 110-F ) do not deal with the substantive law regarding determination of liability. For determination of liability one has still to look to the substantive law in the law of torts and the Fatal Accidents Act , 1855 (hereinafter to be referred to as the 1855 Act) or at any rate to the principles thereof."

22. Relying on the principles contained in such laws <ORG> has laid down the procedure for determination of the quantum of compensation payable to the dependants of the deceased in several cases, of which reference may be made to <CITATION> , AIR 1962 SC 1 and <CITATION> , AIR 1966 SC 1750. In AIR 1962 SC 1 their Lordships of <ORG> with approval quoted the principle laid down by Viscount <NAME> in <NAME> v. <ORG>, 1951 AC 601 as follows :--

"Viscount <NAME> then proceeded to lay down the mode of estimating the damages under the first head. According to him, at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents, secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon, data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained."

In AIR 1966 SC 1750 the question as to what is the principle of determination of the quantum of damages was examined in relation to Fatal Accidents Act , 1855. Their Lordships accepted the legal position formulated by Lord <NAME> in <NAME> v. <ORG>, 1942 AC 601 and it was laid down that the following factors are to be taken into consideration in determining the quantum of damages:-- (1) the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment, (2) an estimate of how much was required or expended for his own personal and living expenses, (3) the balance will form the basis which will be turned into a lump sum by capitalising and (4) this capitalised sum will be taxed down having due regard to uncertainties. For instance, the widow might get remarried, or might die and thus cease to become a dependant.

23. Keeping in view the principle laid down in the above cases let me now examine if the appellants in the present two appeals are entitled to any compensation and, if so, to what extent.

24. In M. A. (F) 37 of 1968 the appellant <NAME>, the widow of deceased <NAME> has claimed Rs. 75,000/- as compensation on behalf of herself and her two minor sons, who were aged about 4 years and 2 years respectively at the time she came to give evidence in court, that is, on 1-2-65. She gave her own age as 26 years at the time of her deposition. The deceased was 32 years 6 months at the time of his death and he used to draw Rs. 405/- as his monthly salary from <ORG>, out of which he used to pay Rs. 4/- as income tax. The deceased left no property except some paddy land jointly owned with his brother as stated by <NAME> in her evidence. It was, however, stated by her that her husband never got any paddy from such land. It further transpires from the evidence of the appellant that the deceased has left his old mother as well and that he used, to maintain her.

25. Out of the salary of Rs. 405/-, the deceased could not have spent on himself more than Rs. 150/- per month He used to pay Rs. 4/- as income-tax per month. Out of the balance it is quite natural that he would try to save some thing for future provision. Under the present circumstances it cannot be expected that he would be able to save more than Rs. 50/-per month out of his meagre salary. If that be so, the balance of Rs. 200/- provide the basis for determining the compensation. The expenditure incurred by him in maintaining his mother may be estimated at Rs. 50/-. It will not he an extravagant estimate to hold that he used to spend about Rs. 150/- per month for his wife and two sons on behalf of whom compensation has now been claimed. The expectancy of life of the deceased, if it was not cut short by the accident, may be reasonably estimated at sixty years. It can also be reasonably expected that the deceased would continue to earn up to this age. If that be so, the appellant <NAME> would have continued to get benefit of Rs. 50/- per month at least for another 27 years and 6 months, i.e., till her husband attained the age of 60 years. Though there is no bar for a widow's remarriage amongst the Hindus now, the possibility of such marriage for a woman having two children is very remote. The total amount that her husband would have spent on her during these 27 years 6 months at the rate of Rs. 50/- per month comes to Rs. 17,100/-. The two sons would have been entitled to get maintenance and education till they attained their majority. The elder one was aged about 3 years and the younger one was aged about one year at the time of their father's death. The former would have continued to get benefit of at least Rs. 50/- per month from his father for about 18 years more and the latter for about 20 years more, that is, till they attained their majority. The value of the total benefit, which the appellant <NAME> and her two sons would have received from the deceased, had he been alive, may thus be roughly estimated at Rs. 39,900/-.

26. The appellant could not have been entitled to this lump sum of Rupees 39,900/- if the deceased had been alive. The sum to be awarded is to be spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at the time of death as damages. Ordinarily one-sixth of the total amount is deducted for fixing the lump sum. In this connection reference may be made to the case of <CITATION> , 1970 Acc CJ 84 (Punj) and the case of <CITATION> , 1972 Acc CJ 92 = (AIR 1973 <NAME> 33). If one-sixth is deducted, Rs. 39,900/- comes to Rs. 33,250/-.

27. It is not denied that <ORG> has paid Rs. 4,000/- to the appellant as solatium after the death of her husband. In view of the <ORG> decision in AIR 1962 SC 1, this sum is to be deducted from the above amount. If this sum is deducted, the appellant is entitled to get a sum of Rs. 29,250/- as compensation. The determination of the question of compensation, as observed by the <ORG>, depends upon several imponderables. In making such assessment there is likely to be a margin of error. Taking this margin of error into consideration it would be just if the claimant is awarded a round sum of Rs. 30,000/-.

28. The learned counsel for the appellant has submitted that the appellant is entitled to get interest over the amount of compensation found payable to her with effect from the date on which she submitted her application. Section 110-CC providing for awarding of interest where any claim is allowed, was incorporated in the statute by Act 56 of 1969 which was to be effective from 2-3-1970. Prior to that there was no statutory provision for awarding interest. The present case was instituted prior to the said Act. The question for consideration, therefore, is whether in the absence of positive statutory provision, interest can be awarded. Applying the principles of natural justice, interest was awarded in the case reported in 1972 A. C. J. 92 (supra) at the rate of 6 per cent. In doing so, the learned Judge relied on some decisions under other statutes where interest was granted on compensation awarded in the absence of statutory provision. The cases relied on in that case are-- <CITATION> AIR 1963 SC 1171, which dealt with a case of grant of compensation under the Life Insurance Corporation Act , 1956 and also on the case of <CITATION> , and <CITATION> ., AIR 1967 SC 1030, and AIR 1967 SC 1032, where interest was awarded under the Arbitration Act even in the absence of any specific provision. Relying on the above decisions we allow simple interest at 6 per cent. per annum to the appellant from the date of her application claiming compensation.

29. It was submitted by the learned Counsel for the respondent No. 1, though very feebly, that in the instant case there is no evidence from the side of the claimant that her husband held any permanent post under the B. O. C. (Pipe Line) to hold that he would have continued in the said post till the usual age of superannuation. This contention has got no force. None of the opposite parties alleged in its written statement that the deceased, was holding a temporary post. In the cross-examination of the claimant also not a single question was put to her in this regard. In the absence of any such suggestion or evidence from the side of the respondent No. 1, it may safely be presumed that the deceased would have continued in his job, as usual, till his time for superannuation came in the usual course. Be that as it may, to grant compensation in such a case, it is not necessary that the deceased should have been actually earning wages at the time of his death. A reasonable expectation of income is enough for the purpose of granting compensation. <NAME> in his well-known book on 'Negligence' third edition at page 559 states: "It is not necessary that the deceased should have been actually earning wages at the death, if there is a reasonable expectation that wages will be earned in the future, with the result that financial benefit will accrue to the dependants. The fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability." I have already pointed out that in determining the compensation payable under the provisions of the Motor Vehicles Act , we have got to look to the principle for determining such compensation under the Fatal Accidents Act . The provisions of the Indian Fatal Accidents Act are similar to those of the Fatal Accidents Act 1846 of England, popularly known as Lord <NAME>'s Act. In the case of <ORG> v. <NAME>, 1913 AC 1 it was observed: It is not a condition precedent to the maintenance of an action under the Fatal Accidents Act , 1846, that the deceased should have been actually earning money's worth or contributing to the support of the plaintiff at or before the date of the death, provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life." In the case of <CITATION> , AIR 1961 Punj 236 a similar view was taken.

30. Let me now come to the case of the appellant in M. A. (F) 38 of 1968. In this case the appellant <NAME> has claimed a compensation of Rupees 20,000/-, on account of the death of her husband late <NAME>. It is an admitted fact <NAME> died at the age of 63 years and he used to draw a salary of Rs. 310/- per month at the time of his death. He has left behind his widow, one son and a daughter. It is seen from the evidence of <NAME>, who was examined as a witness by the appellant that her son is now aged more than 32 years and the daughter has already been married away. The son and the daughter of the deceased are, therefore, not entitled to claim any compensation. Out of the salary of Rs. 310/-the personal expenditures of the deceased may be reasonably estimated at Rs. 200/- per month. Even if the entire balance of Rupees 110/- is supposed to have been spent by the deceased on his wife, the appellant would have derived a benefit of about Rs. 3,900/-during the next three years. It cannot normally be expected that the deceased would have been able to earn for more than another 3 years even if he wan alive, as he was already 63 years at the time of his death. As the appellant has already got Rs. 4,000/-from <ORG>, which sum is to be taken into account in awarding such compensation, as held by <ORG> in AIR 1962 SC 1, the appellant <NAME>, in my opinion, is not entitled to get any further compensation.

31. We are now left with the last point for determination, namely, whether respondent No. 2 is liable to pay any compensation to the appellant <NAME> and, if so, to what extent. As I have already pointed out, the learned. Counsel for the respondent No. 2 took a legal objection that after the passing of the General Insurance Business (Nationalisation) Act 1972, the respondent No. 2 should have been substituted by <ORG>. There is no force in this contention. Indian Insurance Companies were, not wiped out by the above Act and at any rate their undertakings were not acquired. Only the shares in the capital of every Indian Insurance Company stood transferred to and vested in <ORG> under the provisions of Section 4 of the said Act. Only in the case of foreign insurance companies the undertakings were taken over by <ORG>. Even in the case of such foreign insurance companies whose undertakings stood transferred and vested in <ORG> under Section 5 of the said Act, it has been provided in Sub-section (3) of Section 6 of the said Act that-

"If, on the appointed day, any suit, appeal or other proceeding of whatever nature in relation to any business of the undertaking which has been transferred under Section 5 is pending by or against any such existing insurer as is referred to in that section, the same shall not abate, be discontinued or be in any way prejudicially affected by reason of the transfer of the undertaking or of anything contained in this Act, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or against <ORG> in which the undertaking or the part to which the proceeding relates has vested."

It is, therefore, quite evident that under this, Act there is no bar for enforcing any decree arising out of a claim case instituted prior to the Act against an Indian Insurance Company. It is an admitted fact that the respondent No. 2 is an Indian Insurance Company. There is, however, sufficient force in the contention of the learned Counsel for the respondent No. 2 that the respondent No. 2 is not liable to pay more than Rupees 2,000/- per individual, who died in the accident, in view of the provisions of Section 95 of the Motor Vehicles Act, as it stood at the relevant time. Section 95 (2) (b) of the Act as it stood prior to the enactment of Act 56 of 1969 is as follows:--

"95. (2) Subject to the proviso to Sub-section (1) a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely:

(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a, contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees, and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver of two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver."

In the instant case it is an admitted fact that the vehicle in question was authorised to carry more than six passengers. That being the position, the respondent No. 2 is not liable to pay more than Rs. 2,000/- in respect of each individual passenger.

32. In the result the order of the learned Member of <ORG> dismissing the Claim Case No. 99 of 1966 filed by <NAME> is set aside. Her claim case is partly allowed, that is, to the extent of Rs. 30,000/- with proportionate costs which will bear interest @ 6 per cent per annum from the date of the application. Out of this amount the respondent No. 1 will pay Rs. 28,000/- with proportionate costs and the respondent No. 2 will pay the balance of Rs. 2,000/-with proportionate costs. The order of dismissal of the Claim Case No. 100 of 1966 filed by <NAME> is affirmed. Misc. Appeal (F) 37 of 1968 is partly allowed with proportionate costs and Misc. Appeal (F) 38 of 1968 stands dismissed without any order as to costs.

<NAME>, J. 33. The

literal meaning of the term 'negligence' is lack of care, an act of carelessness, or omission of duly. It is a negative term. When there is a duty to take care, the degree of care required of a person in the particular case depends on the accompanying circumstances and varies according to the amount of risk to be encountered and to the magnitude of the prospective injury. Negligence is inferred from the failure to use necessary precautions, which skill, foresight, and experience suggest as being necessary in the circumstances. The duty of a carrier of passengers for hire is to use all the best precautions, which are practicable, for securing safety.

34. The burden of proof in an action for damages for negligence rests primarily upon the plaintiff. In order to succeed he is to prove that he was injured by the act or omission for which the defendant is, in law, responsible. When the plaintiff has established that an accident has taken place resulting in death of or injury to, a person, negligence on the part of the defendant shall be presumed (See Halsbury's Laws of England). In the instant case, therefore, when the claimant has proved that the accident took place, several persons including her husband were killed or injured, it shall be presumed that there was negligence on the part of the driver driving the vehicle in question and it will be the burden of the defendant to prove that the driver took all necessary precautions to avoid the accident. In the instant case the most important witness was the driver, who was the only person who could have shown what amount of care, if any, was taken in driving the vehicle, but he was not examined, for some reason or other. So the defendant has failed to discharge his burden.

35. That apart, the evidence on record and the circumstances proved show that the driver was negligent. The map (Ext. F) shows that there was a sharp bend ahead where the road crossed the railway line. While the bus was coming towards west, the level crossing cannot be seen, until the vehicle takes a turn towards right before getting on the level crossing. It was the duty of the driver, therefore, to slow down his vehicle in order to make sure that no train or railway engine was about to pass along the railway line. Had he driven very slow when he took the turn towards right, he would have seen that a number of vehicles coming from the opposite direction had already stopped across the level crossing on opposite side of the railway line. The very fact that the drivers of those vehicles had stopped their vehicles, shows that some tram or a railway engine was about to pass. If the driver thought that he would be able to clear out before the train or engine comes, or if he came with great speed and was unable to stop the bus before it entered the level crossing, or he did not notice the stationary vehicles on the northern side of the level crossing, the only inference is he was negligent.

36. With these observations, I agree with the order proposed by my learned brother.


<ORG>, J.

1. In this case one <NAME> owed a sum, it is said, to <NAME>. <NAME> died, leaving a widow <NAME> and no son. <NAME>, therefore, was <NAME>'s heir, he not having, so far as appears, any brother. The creditor <NAME>, desiring to enforce payment of the debt due by the deceased, ought obviously to have sued <NAME>, but instead of that he brought a suit against <NAME>'s mother <NAME>, and in execution of ex-parte decree against her as representative of <NAME> sold, or affected to sell, the house in which she dwelt, which was, in fact part of the estate then vested in <NAME>. An attempt was made to get the sale set aside by another <NAME>, who resided with <NAME>, but this failed. It does not appear that <NAME> acted as agent for <NAME>, and we agree with the District Judge that she could not be indentified with <NAME> in his opposition to the attachment so as to be entitled to have limitation computed for her suit from the time of the decision against <NAME>, An unauthorized act cannot afterwards be ratified so as to prejudice a third person who could not be legally affected in the first in- stance owing to the want of authority (Indian Contract Act , IX of 1872, Section 200 ). "

2. It has, however, been many times ruled that the person who after a summary decision against him in a complaint arising on his obstruction is limited to one year, as the time within which he must bring a suit to establish his right, yet has twelve years if "Without any obstruction to the attachment or sale he first claims in a suit as having been wrongfully dispossessed of the property sold in execution. This is the position now taken by the plaintiff <NAME>. He was adopted by <NAME> between the decree and the sale of the house in question. His right dates back to the death of her husband, and there was not any intermediate obstruction to the attachment or sale on <NAME>'s part by which <NAME> could be bound. Had <NAME> acted for her in trying to get the sale set aside, the present suit would have been in time under the Law of Limitation, but she merely remained quiescent. It is urged, however, that this quiescence was in itself enough to bind <NAME> and binding her bound her adopted son also, so that now the latter is estopped from disputing the regularity of the proceedings leading to the sale and the validity of the title acquired by the defendant <NAME> as purchaser at the sale in execution. The case of <ORG> H.C. Rep. A.C.J. 37 is referred to in support of this contention; and if <NAME> had wilfully put forward <NAME> as the representative of <NAME> so as to deceive and mislead <NAME>, then, no doubt, she might be held bound by the decree obtained by the latter against <NAME>. But the District Judge finds that <NAME> was not ignorant of <NAME>'s position; there is nothing to indicate that she took any step to deceive him; and her mere quiescence, while he wilfully sued the wrong person, could not deprive her of her legal rights-see <NAME> v. <NAME> Second Appeal No. 621 of 1883, decided 17th June 1834. Much less could it deprive her adopted son <NAME> of his rights <NAME> & Buhler 1176 (3rd ed.), He could not be bound by a suit and sale, to which he was not a party, either in person or by representative-Fatu v. <NAME> Printed Judgments for 1884, p. 182. The case of <CITATION> . 4 Calc. 342 rest on a supposed deceitful withholding of a will and a suit against the wrong person induced by the deceit. The case of <NAME> v. Venktapa I.L.R. 5 Bom. 19 shows that a suit, however just in itself, brought against the wrong party, "cannot be sustained against the right one, though it shows also that a mortgage erroneously sued on against A is not so extinguished by the decree and consequent execution that it will not avail against B, the person really liable, but not represented in the previous suit. In the present case there was not a mortgage giving to <NAME> an interest in <NAME>'s property; there was but a debt due to him; and when the suit against <NAME> is pronounced ineffectual as against <NAME>, there is nothing left to fall back upon except the personal obligation so far as this may have descended to <NAME> and may still be an available cause of action to the creditor.

3. <NAME>, however, it is urged, was bound to come forward when, the property was attached and sold: on <NAME>'s decree. But the present Code of Civil Procedure, in giving to persons an opportunity to come forward and set up claims to property proposed to be sold in execution, does not say, nor do the rules made under Section 287 of the Code say, that by not coming forward a true owner of the property submits to an extinction of his legal rights. It still behaves an intending purchaser as when the case of <NAME> v. <NAME> 8 Bom. H.C. Rep. A.C.J. p. 37 was decided, to see that the person sued as a representative was really the representative of the debtor deceased, since by sale of the derived interest which is no interest) of A, the real interest of B, the true representative, cannot in general be affected. In the case we have just referred to, <NAME> (Equity Jurisprudence) is quoted (page 43) Sec Sugd. V. & P., Ch. XXIII. Section 2 Wh. & T.L.C. 25, 27 (3rd ed.) to the effect that one who knowing his own title stands by and encourages a purchase of property as another's, will not be allowed to dispute the validity of the sale; but this implies a wilful mis-leading of the purchaser by some breach of duty on the owner's part. The principle broadly stated by <NAME> must, in practice, be taken with the qualifications stated in <NAME> v. Watts L.R. 25 Ch. D.571 and in Wilmot v. Barber L.R. 15 Ch. D. 96, 105. From these it appears that "a man is not to be deprived of his legal rights, unless he has acted in such a way as would make it fraudulent for him to set up these rights." There must be ignorance on the one side deluded by a misrepresentation in act or word on the other-Rajcoomar V. McQueen L.R. 15 Ch. D. 96, 105. Now in the present case there does not appear to have been anything more than quiescence on the part of <NAME>, unless <NAME>'s application can be attributed to her. If it could be so attributed, then the alleged quiescence and its consequences would fail; but, excluding this, there was no deceit practised; no one was asked to buy by <NAME>; she did not represent that she had no interest in the property. She merely left <NAME> to sell <ORG>'s so called representative interest for what it might be worth, and did not volunteer any advice or assistance to intending purchasers, who could themselves have ascertained the truth by reasonable inquiry <NAME> v. <NAME> 3 H.L. 739; <NAME> v. <NAME>, 8 H.L. 481. Supposing <NAME> was aware of what was going on, she was not, as we have seen, bound to take any step Second Appeal 621 of 1882, decided on 17th June 1884; she might lawfully leave the persons concerned to their own counsels and devices. The illustration to Section 115 of the Indian Evidence Act sets forth that one is bound who intentionally and falsely leads a purchaser to suppose he is taking a perfect title. There is an obligation to truth in speech and act, but no obligation to speak or act where no confidence is given or accepted, merely for the purpose of guarding or furthering the interests of strangers proceeding wholly in invitum, and with an omission to inquire, which is equivalent to knowledge See per Lord <NAME> in <ORG> v. <ORG> & Ir Ap. At P.157.

4. The sale must therefore, be pronounced void as against <NAME>, and the decrees of the Courts below being reversed, the house is awarded to him as sought in his plaint, with costs throughout.


1 "REPORTABLE" IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2020 OF 2011 (ARISING OUT OF SLP (C) NO. 17755 OF 2007) <ORG>. .... Appellants Versus State of U.P. & Ors. .... Respondents J U D G M E N T

<NAME>, J.

1. Leave granted.

2. Land owners - appellants have challenged the judgment of Allahabad <ORG>, challenging the dismissal of their petition, whereby they had challenged the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter called "the Act" for short). The lands comprised in Plot Nos. 542, 543 and 544 of Village Jainsinghpura Bangar, Mathura, U.P., measuring 6.6 acres were sought to be acquired by notification dated 20.3.1991 issued under Section 4 of the Act. Ultimately, after the enquiry under Section 5A of the Act, the notification under Section 6 of the Act came to be issued on 28.2.1992. It is an admitted position that in pursuance thereof, the award has also been passed.

3. <NAME>, the learned senior counsel appearing on behalf of the appellants urged before us that <ORG> has not considered the major defects in the whole proceedings under the Act and more particularly, under Section 5A of the Act. The learned senior counsel vehemently argued that in pursuance of the notice inviting objections under Section 5A of the Act issued by Collector, <NAME>, published in the newspaper "<ORG>" dated 21.3.1991, the appellants filed their objections under Section 5A of the Act on 18.4.1991 ventilating their grievances. The appellants had also sought for an opportunity of personal hearing and accordingly, <NAME> had appeared before the Land Acquisition Officer on 3.5.1991; however, on that date, he was informed by the Land Acquisition Officer that no reply was filed by <ORG> to the objections filed by the appellants. It was also informed that the officers were busy in election duty and, therefore, no hearing was possible on that date and the next date of hearing would be communicated to the appellants in due course. The learned senior counsel pointed out that thereafter, no date was ever informed to the appellants and ultimately, no hearing was given and instead the Government came out with the publication of the notification dated 28.2.1992 under Section 6 of the Act. The learned senior counsel asserted that in the absence of any hearing under Section 5A of the Act, the whole proceedings under the Act were rendered illegal. The learned senior counsel also relied on the affidavit of the lawyer of appellants in land acquisition proceedings asserting that no hearing opportunity was given to him.

4. This contention was very strongly refuted by <NAME> and <NAME>, learned senior counsel appearing on behalf of the State of U.P. and <ORG> (respondent No. 3) respectively. The original report was produced before us. Both the learned senior counsel urged that on that day i.e. 3.5.1991, a further date was given and the parties were heard and it is only thereafter that an investigation report was prepared under Section 5A (2) of the Act. We have been taken through the said report wherein the objection on the part of the said <ORG> was the non-publication of the public notices under Section 4 of the Act. That contention was specifically refuted by pointing out that there was proper publication of the notices under Section 4 of the Act. The other objection raised was that the whole acquisition was done with mala fide intentions. It was suggested in the objection that about 150 acres of land for housing development was already acquired about 20 years back and yet no development had been made. It was also urged that the acquisition of the land for the planned housing development is not covered under the public purpose. It is apparent from the report that all these objections were dealt with holding that there was no question of any mala fides in the acquisition. It has also been held that the acquisition for the public purpose of planned housing development is very much a public purpose. The said acquisition has been justified on account of increase in the population and fast industrial development which required the availability of the houses for the persons of middle income group and lower income group, and of Scheduled Castes, Scheduled Tribes and backward class. The other objection raised was that the land was not suited for the public purpose since there was 16 year old village Abadi of about one and a half acre and there were number of trees on two and half acre land. That question has also been dealt with in details holding that the <ORG> would develop Public Park, School and Play Ground on the acquired land. Even the objections raised by one <NAME> have been considered in details by the Land Acquisition Officer. We are quite convinced that all this could not have been possible unless the appellants were heard and their objections were considered in details. <NAME>, learned senior counsel appearing for the appellants urged that this <ORG> had invited the original report and the original report did not show the factum of hearing. We have seen the original report and the order sheet. Indeed, there are dates given after the first date, on which date some of the objectors were also present. There are some missing pages. However, it is specifically mentioned in the report that the objectors have been heard. In our opinion, once the original report suggests that the objectors were heard, there is no point in urging that the appellants were not heard.

5. <NAME>, learned senior counsel appearing on behalf of <ORG> (respondent No. 3) relied on the decision in <ORG> & <ORG>. Vs. State of Andhra Pradesh & <ORG>. [2010 (5) SCC 590]. The observations made in para 42, where this Court had specifically held that the contention raised on behalf of the appellants about hearing not afforded to the objectors was refuted on the ground that the objections filed were duly considered by the Special Dy. Collector and rejected by his order dated 21.7.2006. Since we have seen the original report in this case, we are of the opinion that not only was the hearing afforded, but all the objections have been specifically considered. The counter affidavit shows a document where the objectors have been invited for the hearing on a fixed date i.e. 17.9.1991. We are of the clear opinion that not only the objectors were heard, but their objections were also decided. This contention raised on behalf of the appellants is rejected.

6. As regards the affidavit of the lawyer appearing on behalf of the appellants in land acquisition proceedings, we have gone through the affidavit. It is, however, completely, bereft of the dates and other details. We, therefore, do not find it fit to rely upon the same.

7. The second contention raised by <NAME>, learned senior counsel is that though the acquisition proceedings are over and the award is also passed, the possession has not been taken at all. The learned senior counsel pointed out, relying on the decision in <NAME> Vs. M.D. Bhagwan & Ors. etc. etc. [1976 (1) SCC 700] that as per the majority view expressed by <ORG>, it is the physical possession which should be taken in pursuance of the land acquisition and not only symbolical possession or paper possession. The learned senior counsel also relied on the report to suggest that inspite of the acquisition, still the <ORG> entries were in favour of the appellants showing their possession and the cultivation by them in respect of the land. <NAME> tried to show some photographs suggesting therein that the wicket gate had the lock of the appellants and thus contended that the possession still continues with the appellants. In fact, it is a question of fact as to whether the possession has been taken or not. However, the respondents have produced the possession receipt, where it is suggested that the possession was taken by the officers after going on the spot. <NAME>, learned senior counsel appearing on behalf of <ORG> (respondent No. 3) pointed out that it would be impossible for the Collector or <ORG> officers to enter each bigha of land for taking possession thereof and, therefore, the pragmatic approach has to be adopted by the <ORG> while considering as to whether possession has been taken or not. The learned senior counsel also pointed out that the documents show that actual possession was taken. He also tried to point out the photograph suggesting that not only the possession has been taken, but number of other activities of construction were going on at the land including drawing the layout thereof and building the roads therefor. The learned senior counsel relied on the reported decision in <ORG>, New Delhi Vs. Lieutenant Governor, Government of NCT, Delhi & Ors. [2009 (10) SCC 501], as also in Dahyabhai Ranchhoddas Dhobi & Anr. Vs. State of Gujarat & Ors. [2010 (7) SCC 705], where the view has been taken about the pragmatic approach to be adopted by the <ORG>s in deciding as to whether the possession was taken or not. Seeing the report and the orders passed, we are thoroughly convinced that not only the possession was taken, but there are activities going on at the behest of the <ORG>. This is apart from the fact that this is a pure question of fact which has been answered by the High <ORG> in no uncertain terms. In this view of the matter, we are of the clear opinion that even on this count, the appellants must fail.

8. We are completely satisfied with the judgment of <ORG> and the findings therein. We confirm the same. No other question was raised. In result, the appeal fails and is dismissed, but without any costs.

(V.S. Sirpurkar) ......................................J.

(<NAME>) New Delhi;

February 23, 2011.

Digital Proforma 1. Case No. : Civil Appeal No.______of 2011 [Arising out of SLP (c) 17755 of 2007] 2. Cause title : <ORG>. Vs. State of U.P. & Ors. 3. Judgment heard by : Hon'ble Mr. Justice <NAME> Hon'ble Mr. Justice <NAME> 4. Judgment reserved by : Hon'ble Mr. Justice <NAME> 5. Date of C.A.V. : 17.2.2011 6. Date of pronouncement of Judgment : 23.2.2011 7. Nature of judgment : Reportable


PETITIONER: SHRIMATI HIRA DEVI AND OTHERS Vs. RESPONDENT: DISTRICT BOARD, <NAME> DATE OF JUDGMENT: 20/10/1952 BENCH: BHAGWATI, <NAME>: BHAGWATI, NATWARLAL H. MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA CITATION: 1952 AIR 362 1952 SCR 1122 CITATOR INFO : R 1959 SC 480 (6) RF 1970 SC 140 (6) R 1972 SC2284 (19) R 1992 SC 96 (14) ACT: U.P. District <ORG>s Act (X of 1922), ss. 71, 90--Disrict <ORG>--Dismissal of secretary--Resolutions for dismissal, and suspension pending decision of appeal to Govern- ment--Validity of suspension. HEADNOTE: Section 71 of the U.P. District <ORG>s Act, 1922, as amended in 1933 provided that a resolution of the <ORG> for the dismissal of its secretary shall not take effect until the period of one month has expired or until the State Government have passed orders on any appeal preferred by him. <ORG> passed a resolution for dismissal of its secretary and also for his suspension till the matter of his dismissal was decided under section 71 of the Act on an appeal if any preferred by the secretary: Held, that under section 90 of the Act a secretary could be suspended only as a punishment or pending inquiry or 1123 pending the orders of any authority whose sanction is neces- sary for his dismissal. The words "pending the orders of any authority whose sanction is necessary for his dismissal" could not appropriately cover the case of a suspension like the present one and the resolution for suspension was 'therefore ultra vires. Held further, that since the <ORG> was created by stat- ute, and its powers of dismissal and suspension are defined and circumscribed by sections 71 and 90 of the Act it would not be legitimate to have resort to general or implied powers under the law of master and servant or under section 16 of the U.P. General Clauses Act;and even under section 16 of that Act powers which are vested in an authority to suspend or dismiss any person appointed, are to be operative only "unless a different intention appears" and such a different intention is to be found in sections 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the <ORG>. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 114 of 1951.

Appeal from the Judgment and Decree dated the 5th Sep- tember, 1947, of <ORG> at Allahabad (<NAME> and <NAME> JJ.) in First Appeal No. 516 of 1942 arising out of Judgment and Decree dated the 3rd October, 1942, of <ORG> in Original Suit No. 10 of 1941.

<NAME> (<NAME>, with him) for the appel lants. <NAME> (<NAME>, with him) for the re- spondents.

1952. October 20. The Judgment of the Court was deliv- ered by <NAME> is an appeal by the heirs and legal representatives of the deceased plaintiff against the decree of <ORG> allowing' the appeal of the defendants against the decree passed by <ORG> in favour of the plaintiff allowing the plaintiff's claim in part. One <NAME>, the plaintiff, was employed by <ORG>, the defendants, as their Secretary in the year 1924. He was also entrusted in 1929 with the additional duties of doing assessment work for the defendants. The work done by the plaintiff did not find favour with some members of the <ORG> and on the 9th November, 1939, six members of the <ORG> tabled a resolution asking the Chairman to convene a special meeting of the <ORG> to consider a resolution for the dismissal of the plaintiff. A special meeting of the <ORG> was convened on the 17th December, 1939. Twelve charges were framed against the plaintiff and he was re- quired to furnish his answers to them. A special meeting of the <ORG> was thereafter convened on the 20th January, 1940. The resolution for the dismissal of the plaintiff was on the agenda but the meeting had to be adjourned for want of -quorum to the 29th January, 1940. At the adjourned meeting of the 29th January, 1940, twenty-five out of the twentyseven members of the <ORG> were present. The charges against the plaintiff were gone into and eleven out of the twelve charges were held proved. Two resolutions were consequently passed by the <ORG> at this meeting, one being a resolution for his dismissal, and the other being a reso- lution for his suspension till the matter of his dismissal was decided under section 71 of the U.P. District <ORG>s Act, X of 1922, on an appeal if any preferred by the plain- tiff to the <ORG>. The plaintiff preferred an appeal to the <ORG> against the resolution for his dismissal and this appeal was dismissed by the <ORG> on the 19th December, 1940.

The plaintiff thereafter commenced in the Court of the Civil Judge at Shahjahanpur the suit out of which this appeal arises against the defendants for a declaration that the two resolutions passed by the <ORG> on the 29th January, 1940, were illegal and ullra vires of the <ORG> and that he continued to be the Secretary and Assessing Officer of the <ORG>, for an injunction restraining the <ORG> from prevent- ing him from discharging his duties as such Secretary and Assessing Officer, for arrears of his salary with interest and contribution to his provident Fund and in the alterna- tive for damages and compensation for illegal dismissal and suspension and for costs. The defendants contended that the said resolutions were valid and binding on the plaintiff and that the plaintiff was not entitled to any relief as claimed.

The learned trial judge held that the two resolutions passed by the <ORG> on the 29th January, 1940, were properly passed and that there was no irregularity in the procedure. He held that the resolution for dismissal of the plaintiff was valid and binding on the plaintiff but the resolution for suspension was not legal. In the result he decreed the plaintiff's claim for arrears of salary, and the contribu- tion towards the provident fund against the defendants for the period of suspension and awarded to the plaintiff a sum of Rs. 6,629-4-0 with proportionate costs, the rest of the plaintiff's claim was dismissed. The defendants appealed to <ORG> against this decree and the plaintiff filed cross-objections in regard to his claim which had been disallowed. The plaintiff died during the pendency of the appeal and his heirs and legal representatives, being his widow and his four sons, were brought on the record. <ORG> concurred with the trial court in the finding that there was no irregularity, impropriety or illegality in the procedure followed and the steps taken before the meet- ing or at the meeting of the <ORG> when the two resolutions were considered and passed. It however disagreed with the conclusion reached by the trial Court that the resolution for suspension was ultra vires the <ORG>. It held that the resolution for suspension also was valid and binding on the plaintiff and thus dismissed the plaintiff's suit with costs throughout. The crossobjections of the plaintiff were of course dismissed with costs. The heirs and legal repre- sentatives of the plaintiff obtained leave to appeal to <ORG> against this decision of <ORG> and the appeal was admitted on the 5th November, 1948. Both the <ORG> below having found that there was no irregularity, impropriety or illegality in the procedure followed and the steps taken when the two resolutions in question were passed by the <ORG> the only question that survived for consideration by this Court was whether the resolution for suspension of the plaintiff was valid and binding on the plaintiff or in other words whether it was competent to the <ORG> to pass the resolution for the suspension of the plaintiff after it had passed the resolu- tion for his dismissal under section 71 of the Act. Section 71 of the Act provides for the dismissal and punishment of the secretary:

"A board may by special resolution punish or dismiss its secretary:

Provided, firstly, that such resolution is passed by a vote of not less than two-thirds of the total number of members of the board for the time being:

Provided, secondly, that the secretary of a board shall have a right of appeal to <ORG> against such resolution within one month from the date of the communica- tion of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until <ORG> have passed orders on any appeal preferred by him."

It will be relevant at this stage to note that this section 71 was amended by U.P. Act I of 1933. Section 71 as it originally stood ran thus:

"A board may by special resolution punish or dismiss its secretary provided,

(a) that such a resolution is passed by a vote- of not less than two-thirds of the total number of members of the board for the time being, or (b) that it is passed by a vote of not less than one-half of the total number of members. and is ' sanctioned by <ORG>' ....

It may be noted that in the original section 71 provi- sion was made for the sanction of <ORG> in certain cases. No such provision is to be found in the amended section 71 of the Act. The resolution according to the amended section 71 is to be passed by a vote of not less than two-thirds of the total number of members of the Board and such a resolution is not to take effect until the period of one month has expired within which the secretary can exercise his right of appeal or until the <ORG> have passed orders on the appeal if any preferred by him. There is no question of the sanction of <ORG> to any resolution for dismissal the only provision being that the resolution is to take effect after the expiration of the period of one month or after the <ORG> have passed orders on the appeal if any preferred by the secretary within that period of one month. Once that period of one month expires without the secretary preferring any appeal against the resolution of the Board or the <ORG> passes final orders on the appeal preferred by him, the resolution takes effect without anything more in the nature of a sanction by the <ORG>. The power of suspension is conferred and regulated in section 90 of the Act :--

"(1) Suspension may be of two kinds:

(a) suspension as a punishment, and

(b) suspension pending inquiry or orders. (2) Where a general power to punish is conferred by this Act, it shall be deemed to include a power to suspend as a punishment for a period not exceeding three months. (3) Where a power of dismissal, whether subject to the sanction of any other authority or not, is conferred by this Act, it shall be deemed to include a power to suspend any person against whom the power of dismissal might be exer- cised, pending enquiry into his conduct or pending the orders of any authority whose sanction is necessary for his dismissal.

(4) Where suspension is ordered pending inquiry or or- ders, and the officer suspended is ultimately restored, it shall be at the discretion of the authority ordering his suspension whether he shall get any, and, if so what, allow- ance during the period of suspension; but in the absence of any order to the contrary he shall be entitled to the full remuneration which he would have re- ceived but for such suspension."

The suspension which has been thus provided for is of two categories, (1) suspension as a punishment and (2) suspension pending enquiry or orders. In the case of a suspension falling within the latter category the only power of suspension which is provided is that of suspending any person against whom the power of dismissal might be exer- cised pending enquiry into his conduct or pending the orders of any authority whose sanction is necessary for his dis- missal. The power of suspension pending enquiry into the conduct of the person can only be exercised if an enquiry against him has been started and before any order is made for his dismissal as a result of such enquiry. The power of suspension pending the orders of the authority whose sanc- tion is necessary for his dismissal can similarly be exer- cised provided the order of dismissal is made but that dismissal could be effective only after the orders of the authority whose sanction is needed for effectuating the same. The section does not provide for any other case where as on the facts before us the order of dismissal does not require the sanction of any authority but has got to await either the expiry of a particular period after such order of dismissal has been made or the result of an appeal which may be preferred to the <ORG> within the period prescribed in that behalf. A decision of an authority to which an appeal is provided is not the same thing as a sanction by the authority. A perusal of sub-section (4) of section 90 makes this position quite clear. The authority ordering the suspension is vested with the discretion to determine whether the officer suspended would get any or if so what allowance during the period of suspension where suspension is ordered pending enquiry or orders and the officer sus- pended is ultimately restored. There is no provision for any allowance where the officer having been dismissed is also suspended for the period which has of necessity to expire before his appeal is time-barred or before the Gov- ernment passes orders on the appeal if any preferred by him within the prescribed period. Such a case is not at all provided for in sub- section 4 of section 90 and the officer so suspended would be without any remedy whatever and would not be able to get any allowance at all from the authority ordering his suspension during such period of suspension. It is necessary to bear in mind the provisions of these sections 71 and 90 of the Act in order to determine whether it was competent to the Board to pass a resolution for suspension of the plaintiff after it had passed the resolu- tion for his dismissal on the 29th January, 1940. On a construction of these sections 71 and 90 of the Act <ORG> came to the conclusion that the provisions of section 90 of the Act were exhaustive, that no other category of suspension apart from those specified could be ordered and that therefore the resolution for suspension of the plaintiff was ultra rites the Board. <ORG> in appeal realised the difficulty of the position. It came to the conclusion that section 90 as it stood was in close conformity with the provisions of the old section 71 of the Act which provided for the resolution for dismissal passed by a vote of not less than one-half of the total number of members being required to be sanctioned by <ORG>. The sanction was expressly provided there. But when that section came to be amended by the U.P. Act I of 1933, the provision for sanction was deleted and it provided for the resolu- tion not taking effect until the period of one month had expired within which the secretary could exercise his right of appeal or until the <ORG> had passed orders on the appeal ii any preferred by him. When this amendment was made in the old section 71 of the Act the provision made in section 90 in regard to the power of suspension was lost sight of and no corresponding amendment was made in section 90 , sub-section (1)(b), sub-section (3) or subsection (4) which would bring the provisions of   section 90 in conformity with the amended section 71 of the Act. <ORG> was therefore at pains to place what it called a liberal construction on the provisions of section 71 and section 90 of the Act trying to read in the power of suspension provided in section 90 also a power of suspension during the period that the secretary preferred an appeal to the <ORG> against the order of his dismissal and the <ORG> passed orders on such appeal.

Apart from placing this so-called liberal construction on the expression "the orders of any authority whose sanc- tion is necesssary" in section 90 sub section 3 , the High Court also brought to its aid the provisions of Section 16 of the U.P. General Clauses Act of 1904 which provides that "unless a different intention appears the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power-". It came to the conclusion that nothing in the terms of section 71 or section 90 of the Act-controlled or negatived an intention to sustain the general power of suspension, i.e. suspension pending orders on an appeal. <ORG> thus justified the resolution for the suspen- sion of the plaintiff passed by the <ORG> on the 29th January, 1940.

We are afraid we cannot agree with this line of reason- ing adopted by <ORG>. The defendants were a <ORG> created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself. The powers of dismissal and suspension given to the <ORG> are defined and circumscribed by the provisions of sections 71 and 90 of the Act and have to be culled out from the express provisions of those sections. When express powers have been given to the <ORG> under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under section 16 of the U.P. General Clauses Act. Even under the terms of section 16 of that Act, the powers which are vested in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention appears" and such different intention is to be found in the enactment of sections 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the <ORG>. It would be an unwarranted extension of the powers of suspen- sion vested in the <ORG> to read, as <ORG> pur- ported to do, the power of suspension of the type in ques- tion into the words "the orders of any authority whose sanction is necessary". It was unfortunate that when the <ORG> came to amend the old section 71 of the Act it forgot to amend section90 in conformity with the amendment of section 71 . But this lacuna cannot be supplied by any such liberal construction as <ORG> sought to put upon the expression "orders of any authority whose sanction is necessary". No doubt it is the duty of the court to try to harmonise the various provisions of an Act passed by the <ORG>. But it is certainly not the duty of the <ORG> to stretch the words used by the <ORG> to fill in gaps or omissions in the provisions of an Act.

Reading the present, section 71 of the Act along with section 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the <ORG> in the case before us was not the power of suspension contemplated in section 90 sub-section (3) of the Act. If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the <ORG> or if the <ORG> passed orders dismissing his appeal, if any, the resolution for' his dismissal would become effective without any sanction of the <ORG>. The words used therefore in section 90 , sub-section (3) "pending the orders of any authority whose sanction is necessary for his dismissal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the <ORG> on the 29th January, 1940. We are therefore of the view that the resolution for suspension which was passed on the 29th January, 1940, was ultra vires the powers of the <ORG>.

We have accordingly come to the conclusion that the decision reached by <ORG> that the resolution for suspension which was passed by the Board on the 29th Janu- ary, 1940, was valid and binding on the "plaintiff was erroneous and that the conclusion reached by <ORG> was correct. The learned Solicitor General appearing for the defendants has however informed us that the sum of Rs. 6,629-4-0 and the proportionate costs which were awarded by <ORG> to the plaintiff have already been paid to the plaintiff. Nothing therefore remains to be recovered by the heirs and legal representatives of the plaintiff even on the basis that the decree of <ORG> is restored as a result of this judgment of ours.

The only thing which therefore survives is the question of the costs of this appeal. <ORG> had already awarded to the plaintiff proportionate costs. <ORG> in reversing the judgment of the trial Court dismissed the plaintiff's suit with costs throughout including the costs of the cross-objections which were filed by the plain- tiff. The heirs and legal representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in the plaint. That claim could not be sustained before us by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court. If an order for proportionate costs of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff. We are not disturbing the order which had been made by <ORG> in regard to the costs of the appeal before it. No time was taken up before us in arguing the appeal on other points except the one in regard to the resolution for the suspension of the plaintiff being ultra rites and we think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us should be that each party should bear its own costs.

The only order which we need pass in this appeal before us under the circumstances is that the appeal is allowed, the decree of the trial court is restored, and each party do bear and pay its own costs of this appeal.

Appeal allowed.

Agent for the appellants: <NAME>.

Agent for the respondent: <NAME>.