JUDGMENT <NAME>, J.

1. On September 6. 1963. at about 5-15 p.m. at a point on the Kulur-Ferry Road in Mangalore opposite to the P.W.D Stores a young boy named <NAME> who was riding a bicycle and proceeding from the South to the North met with his death in consequence of serious in furies to his skull <NAME>. <ORG>. Mangalore. to whom <NAME> was taken and on whose body <NAME> conducted the post-mortem examination on September 6, 1963. observed during the post-mortem that <NAME>'s skull had been fractured on both sides and that his spleen and liver had both been lacerated. His opinion was that <NAME> died as a result of the skull having been crushed.

2. On November 2, 1963. four persons claiming themselves to be the legal representatives of <NAME> made a claim before <ORG>, Mangalore constituted under Section 110 of the Motor Vehicles Act, for an award that they should be paid a sum of Rs. 5,000/- as compensation by the four respondents. It was slated in that application that <NAME> met with his death in consequence of a collision on the high-way at the point to which I have referred and that a motor vehicle which was owned by respondent 2 and driven by respondent 1 ran over <NAME> while he was proceeding on the left side of the road and that that was how <NAME> was killed.

Respondent 3 is an insurance company with whom respondent 2 had insured his motor vehicle against third-party risks. In reply to the notice issued by the claimants calling upon respondents 2 to pay compensation, respondent 2 asserted that he was not the owner of the motor vehicle at the time of the accident but had sold it to respondent 4. The claimants then made a claim also against respondent 4.

3. The <ORG> refused to make any award in favour of the claimants and so this appeal.

4. It should be mentioned here that among the claimants, the first claimant is <NAME>'s mother, claimants 2 and 3 are his little minor sisters and claimant 4 is his brother who was also a minor. The claim was made by these four persons against the respondents on the assumption that they are the legal representatives of <NAME> with in the meaning of Section 110-A (b) of the Motor Vehicles Act . Although no investigation was made by the <ORG> as to who in deed were the legal representatives of the deceased <NAME>, it is now no longer disputed before this Court that the first claimant Seethamma, the mother of <NAME> is the only legal representative of the deceased. That is so is clear from Section 8 of the Hindu Succession Act, read with Section 17 of that Act. Section 8 incorporates the general rules of succession to the property of a male Hindu dying intestate and Section 17 provides that, that section with the modifications which Section 17 makes in regard to the provisions contained in sub-clauses (c) and (d) of Section 8 , shall govern also succession to the property of a male Hindu governed by Aliyasanthana law Section 17 becomes relevant for the reason that we are informed, although there is no material on record touching that matter, that <NAME> was a Hindu governed by the Aliyasanthana law when the Hindu Succession Act was enacted.

5. In the application which was presented by the claimants to the <ORG>, there is no allegation that there was any negligence on the part of the driver of the motor vehicle but it is more than abudantly clear that every one who contested the claim had no doubt that the action was one founded on negligence.

In Exhibit P-4, which was the notice which preceded the presentation of the claim before the <ORG>, it was asserted on behalf of the claimants that respondent 1 who drove the motor vehicle, drove it rashly and negligently on the wrong side of the road and collided against <NAME> who was riding a bicycle, and, who was himself on the stretch of the road which was to his left.

It is obvious that the omission by the claimants to set out in their own application those allegations, is attributable to the form, in which, in accordance with the rules, they had to make the claim. That statutory form prescribed by the rules contains as many as 22 columns and in the first 21 columns, the claimant is required to slate particulars in regard to those 21 matters referred to therein. The 22nd column reads : "Any other information that may be necessary or helpful in the disposal of the claim. Against that column, the claimants said that <NAME> was an employee under a milk vendor and was proceeding on the road where he was killed and that the notices which were issued to the driver, the owner and the insurer fetched replies repudiating the claim for compensation. They also added that the fourth respondent was impleaded as a party by reason of the allegation made by respondent 2 that the vehicle had been sold to him.

6. It appears to me that the form which is prescribed for the presentation of a claim was mechanically filled up by the claimants in the belief that since rashness and negligence and other particulars had already been set out in the notice preceding the presentation of the claim petition, it was not necessary to reiterate those allegations again. To my mind, the language of the form is such as to mislead a claimant in that way. The 22nd column should require the claimant to state the grounds on which the respondents are sought to be made liable for compensation instead of merely asking him to give any other information that may be necessary or helpful in the disposal of the claim.

7. The form prescribed by the Rules is to my mind both inadequate and misleading. It asks the claimant to state many things without requiring him to state the really essential facts supporting the claim. The 22nd column is the only column against which those material facts could be stated, but, that column which speaks of 'any other information that may assist' 'the disposal of the claim', cannot be comprehended as a requisition for facts creating a right to compensation The language of that column appears to be in the nature of an invitation to state other subsidiary information which the claimant might consider useful to him.

8. So the prescribed form is a poor substitute for a plaint and there can be no rational reason for insistence on a pleading through its columns. A claim for compensation for death or injury which should be supported by a statement and proof of facts which create a right to it, should be allowed to be made through a properly prepared pleading such as a plaint produced before the ordinary <ORG>, and, not through the obscure columns of an imperfect form such as the one prescribed by the Rules. It is however, unnecessary to say more about this in this appeal.

9. However that may be, there can be hardly any doubt that the proceedings before the <ORG> proceeded on the assumption that the claim was one for compensation for death caused by negligence on the part of respondent 1 who drove the motor vehicle. Indeed, the fifth issue which was raised by the <ORG> rends:

" Whether the accident was caused due to the rash and negligent driving of the 1st respondent or whether it was caused by the negligence of the deceased ? "

So, it is manifest that, the case for the claimants was what was set out in Exhibit P-4 which is the notice issued to respondent 1 and which admittedly was similar to the notices issued to the other respondents. In that notice the allegation made by the claimants was that <NAME> was proceeding from the South to the North on the Kulur-Ferry road which is also called Mangalore Suratkal Road, at about 5-15 P.M., and that he was riding his bicycle on the left side of the road. It was also stated that the motor vehicle driven by respondent 1 which belonged to respondent 2 was travelling from the opposite direction from the North to the South, and, that respondent 1, instead of keeping the motor vehicle to his left drove it on the off-side of the road and collided against <NAME> and killed him. It was alleged that <NAME> was an employee under certain Ramakrishna, a milk vendor, earning Rs. 90 a month and that the pecuniary loss sustained by the claimants in consequence of <NAME>'s death amounted to Rs. 5,000.

10. All the four respondents produced their defence before the <ORG>. Respondent denied his liability to pay any compensation and also denied that there was any negligence or rashness on the part of the driver. He also made the allegation that al the time of the accident, he had ceased to be the owner of the motor vehicle which, according to him, had been sold to respondent 4. But that allegation was abandoned by respondent 2 before the <ORG> through a memo which he produced before it on September 27, 1964 in which he admitted that the registration certificate of the motor vehicle continued to be in his own name.

The meaning of this memo, according to Mr. <NAME> who appears for Respondent f before us is that, respondent 2 abandoned the plea that there was any sale in favour of respondent 4 and that in consequence of any such sale, respondent 2 became absolved from the vicarious liability to pay compensation to the claimants. We must, therefore, proceed upon the footing that respondent 2 was admittedly the owner of the motor vehicle when Padmanabha was killed.

11. But the more serious defence was that raised by respondents 1, 2 and 3 who are the driver, the owner and the insurer and respondent 4 who was the alleged purchaser of the motor vehicle.

It should be mentioned at this stage that we are not really concerned in this appeal with respondent 4. whatever might have been the position after the production of the memo by respondent 2 on June 27. 1964 before the <ORG>, with the abandonment of the plea that in consequence of the sale respondent 2 had become divested of the ownership of the vehicle at the time of the accident. If Padmanabha was killed in consequence of the rash and negligent act on the part of respondent 1, the liability to pay compensation was that of respondent 2 and not that of respondent 4

12. Mr. <NAME> appearing for respondent 2 does not dispute that the material on record establishes beyond doubt that at the time when Padmanabha died, respondent 2 was for all purposes the owner of the motor vehicle and that respondent 1 was under his employment. That being the true position Mr. <NAME>, the learned Advocate for the claimants, does not deny that if the claimants have proved negligence, the award can only be against respondent 2 and not against respondent 4 as between them

13. Every one of the remaining 3 respondents. Respondents 1, 2 and 3, denied that the claim ants were the legal representatives of the deceased <NAME>. but since <NAME> who is <NAME>'s mother gave evidence that she was the mother of her son and since as provided by Section 8 of the Hindu Succession Act read with Section 17 . the mother who is in Class I is the sole legal representative of <NAME> to the exclusion of claimants 2, 3 and 4 who are either the sisters or the brother of <NAME> and who fall within Class II to the schedule of the Hindu Succession Act . So, it is not disputed before us by Mr. <NAME> Rao that the first claimant is the legal representative of <NAME> and therefore, entitled to compensation such as could be properly claimed by her in these proceedings

14. What respondent 1 stated in his defence was that although he did drive the motor vehicle, which, as already observed, belonged to respondent 2 he was not responsible for the death of Padmanabha In effect his defence was that there was no collision between the bicycle ridden by Padmanabha and the bus driven by respondent 1. His allegation was that Padmanabha when he was riding his bicycle, looked behind, lost his balance, and fell down and died in consequence of the injuries which he sustained when he fell on the road. Although respondent 2 did not in so many words adopt the defence put forward by respondent 1. respondent 3 said very much the same The defence by this respondent who is the insurer was that Padmanabha who was not very happy on the bicycle and was very unsteady on the road, looked behind, lost his balance, fell down and met with his death and that the bus has nothing to do with it.

15. On these pleadings the <ORG> raised the 5th issue which I have already extracted which poses the question whether the mishap was attributable to the rashness and negligence on the part of the driver or whether it was attributable to <NAME>'s negligence. On this issue the finding of the <ORG> was entirely in favour of the respondents, and adverse to the claimants. That finding was that there was no rashness or negligence on the part of the driver and that <NAME> brought about his death by his own negligence. In effect, the finding was that <NAME> was responsible for the mishap which befell him.

16. It should be however mentioned that, the <ORG> did not believe the story stated by respondents 2 and 3 that the injuries sustained by Padmanabha were attributable to the fall on the road when he looked behind and lost his balance. The <ORG> had no doubt in its mind that Padmanabha was caught under the wheels of the bus driven by respondent 1 and was crushed to death. But the <ORG> was nevertheless of the view that even though it was not true that Padmanabha died in manner mentioned by the contesting respondent, the evidence revealed that Padmanabha rode his bicycle on the off-side of the road instead of keeping to the left and collided against the bus which, according to the <ORG> was being driven on the correct side by respondent 1. But the <ORG> properly proceeded to record a finding as to the measure of the compensation properly claimable by the claimants and was of the view that a sum of Rs. 4,500 was the compensation which could have been claimed in that way if really negligence had been proved.

17. Mr. <NAME>, the learned Advocate for the claimants has endeavoured to support this appeal through a challenge which he has made to both the findings recorded by the <ORG>. He has assailed the finding that no negligence on the part of the driver was established as also the finding that the claimants could not claim any sum in excess of Rs. 4,500 as compensation. His submission was that the evidence of the witnesses who gave evidence about negligence was unreasonably disregarded by the <ORG> and that in arriving at the compensation claimable, the <ORG> instead of believing the positive and definite evidence on record indulged in mere speculation

18. It would first be convenient to discuss negligence, to prove which, the claimants examined three witnesses. Those witnesses are P.Ws 1, 2 and 4. P. Ws. 1 and 2 were called to describe the incident which they professed to have seen. P. W 4 gave evidence as to the speed with which respondent drove his motor vehicle at a point a furlong or one and half furlong away from the scene of occurrence, before the bus reached the place where <NAME> was killed.

19. I should now proceed to summarise the effect of the evidence of P.Ws. 1 and 2. P. W. 1 is Ramakrishna, who, according to him. had employed <NAME> for distribution or milk which he was selling of his constituents. P.W. 2 gave evidence that he was also riding a bicycle on his way from his shop to a restaurant where he wished to have some tea. The evidence of P. W. 1, was that at the time of the incident, he and <NAME> were both riding their bicycle in single file along the Kulur-Ferry Road from the South towards the North. P. W. 1 was riding his bicycle about 15 feet ahead of <NAME>. The evidence of P. W. 2 was that he was also on a bicycle on his way to the restaurant and that he was about 20 feet behind <NAME>.

20. The evidence of both these witnessess was that they were all riding their bicycles on the left side of the road, which it is not disputed is the correct side. The stretch of the road which was described by them as the left side of the road would be the western side of the road on which side alone it was their duty to ride their bicycles.

21. Now describing what happened just immediately before Padmanabha was kailled, <NAME> stated that when he and deceased were proceeding on the left side of the road, at a point opposite to a place known as the P W D. Stores, the bus driven by respondent 1 arrived from the opposite direction at high speed and on the same stretch of the road on which <NAME> and the deceased were riding their bicycles. The effect of his evidence is that respondent 1 was driving his bus not on that stretch of the road which was to his left side as he should have done, but on the stretch of the road to his right which he should not have done.

22. <NAME> proceeded to state that when the bus came there in that way, he became frightened and darted to the further left and after having left the road. "went downwards" and that when he looked behind, he observed Padmanabha having fallen under the bus Proceeding to state what next happened, he added that the bus dragged Padmanabha along some distance and turned a little to the left and stopped, but Padmanabha had by then died. He also professed to have seen Padmanabha's bicycle lying at a distance and that its front wheel had been damaged <NAME> who gave evidence that he was a binder in a press, stated that at 4-30 p.m., he left his press and was proceeding towards a restaurant on his bicycle for tea and that at a particular point of time, Padmanabha was proceeding on his bicycle twenty feel ahead of him and that <NAME> was ahead of Padmanabha on a bicycle and that they were all riding their bicycles on the left side of the road.

23. The account which he gave of the incident was that the bus came from the opposite side at a high speed along the same stretch of the road on which these three persons were riding their bicycles and that P. W. 1 then reached the extreme left side of the road just in time to save himself from being killed. He added that the bus then came and collided against the bicycle of the deceased and that the impact was on the right side of the bus. That <NAME> then fell under the rear wheel of the bus which ran over him and that the driver of the bus turned it to the right and stopped it about ten feet away from the place where <NAME> fell down and that <NAME> along with his bicycle were both dragged along that distance was the further evidence given by him.

24. Mr. <NAME>'s submission was that the evidence of these witnesses makes it more than abundantly clear that respondent 1 drove his bus on the off-side of the road which was by itself an actionable negligence. He pointed out to us that the road on which the bus was driven was a narrow road having a width of only 12 feet 10 inches with pavements on either side with a width of 3 feet. There is evidence given by P. W. 2 and also that given by the first respondent who gave evidence as R. W. 1 that at the time there was a collision, there was heavy traffic along the road.

Respondent 1 stated that school children and cyclists were using both sides of the road. During the hearing of the matter before the <ORG>, a sketch which was said to have been prepared by the police during the investigation which they had made, was brought on record by consent of parties and marked Exhibit P 2. From that sketch it will be seen that the road had a width of 12' 10", that there were two pavements on either side of the road measuring 3 feet in width. That sketch indicates also the position of the bus after its motion had been arrested and that some part of the front portion of the bus had really gone over the pavement on the eastern side of the road at that time.

25. The argument pressed upon us by Mr. <NAME> was that, we should believe the evidence of P. Ws. 1 and 2 that both of them and <NAME> were riding their bicycles on the left side of the road and that they had a right to use the highway in that manner. He also asks us to believe the evidence given by them that respondent 1 instead of keeping his bus to his left side of the road, namely, on the eastern stretch of the road, drove it on the off-side at an immoderately high speed and struck down <NAME> who was caught under the rear wheels of the bus.

26. The <ORG>, however, thought that P. Ws 1 and 2 were not witnesses of truth. It was of the opinion that their evidence was unworthy of belief and in coming to that conclusion it assigned reasons which, to my mind, appear to be quite singular. The main and the principal reason which in its opinion supported its findings was that the driver of the bus drove his bus on the correct side, namely, on the eastern side but that <NAME> was on the off-side of the road instead of keeping himself on the western stretch of the road and collided against the bus

27. Before proceeding to discuss the reasoning employed by the <ORG>, it has to be observed that Mr <NAME> is right in making the submission before us that there was no material before the <ORG> on the basis of which it could have transported itself to the conclusion that Padmanabha was the off-side of the road instead of his left side Mr. <NAME> is right in his submission that in reaching that conclusion the <ORG> made out a case for respondents which they themselves never urged and in making that subinission, it seems to me, that Mr. <NAME> is on firm ground.

28. It will be recalled that respondent 1 did not even admit that his bus ran over Padmanabha. His definite plea was that Padmanabha who was unsteady on his bicycle at the relevant point of time very unwisely looked behind, lost his balance, fell on the ground and broke his head. No one and not even respondent 2 or respondent 3 suggested that Padmanabha rode his bicycle on the off side of the road, namely, the road to his right.

29. But the <ORG>, nevertheless fell persuaded to think that the probabilities demonstrated that Padmanabha was on the wrong side of the road when he was on his bicycle and that that was how there was a collision on the highway lip arrived at that conclusion by this process He adverted to the evidence of P. Ws 1 and 2 which was to the effect that Padmanabha was on the left side and that respondent 1 was on the off-side Having alluded to that evidence, the <ORG> stated that if indeed that is how the collision happened, the bus when it was in motion and was stopped by respondent 1 about 10 feet from the place of the incident, should have been on the centre of the road instead of its being found us is seen from Exhibit P-2, on the extreme eastern side with a part of the front portion of the bus on the pavement

30. It seems to me that the reasoning is both artificial and unrealistic It is nol easy to understand how the <ORG> could have thought that if Padmanabha was on the correct side of the road and the bus was on the off-side and it went and collided against him. the bus could not have gone beyond the centre of the road to the pavement as revealed by Exhibit P-2 The <ORG> seems to have assumed that in all cases where there is collision between a motor vehicle travelling on the off-side of the road and a pedestrain or a cyclist or even a motorist travelling in the opposite direction on the correct side of the road, the motor vehicle which is responsible for the collision should not go beyond the crown of the road and that it is always possible to arrest its motion when it has reached the centre of the road What the <ORG> overlooked was that the question as to where and in what particular spot the person in charge of the motor vehicle will be able to stop that vehicle, depends upon various facts including the control he has over the vehicle, its speed, the condition of the road, his presence of mind and the like so, the supposition which impelled the conclusion that the evidence of P.Ws 1 and 2 was necessarily incompatible with the position of the motor vehicle revealed by Exhibit P-2 is manifestly groundless and quite unfounded and opposed to the pleadings and docs not fit into realities.

In my opinion, far from there being any antithesis between the evidence given by P. Ws 1 and 2 and the position of the motor vehicle revealed by the sketch Exhibit P-2. Exhibit P 2 really is in the nature of a corroborating piece of evidence lending assurance to the truth of the evidence given by P. Ws. 1 and 2.

32. (After discussing the evidence in para. 31, the judgment proceeds) : The <ORG> was inclined to think that there were other reasons for distrusting the testimony of the two witnesses. The first mistake committed by it was in thinking that there was anything in sketch which could support the deduction that the driver was on the correct side of the road. What the <ORG> did was to think that be cause according to the sketch the bus was on the left side of the road, respondent 1 must have been travelling on that stretch of the road. This inference overlooks the positive evidence given by the two witnesses that the bus reached the left side when it was only taken there after it collided against Padmanabha.

33. Before proceeding to consider the other criticism made by the <ORG> of the evidence of these witnesses, it should be pointed out that the <ORG> thought that the two witnesses were biassed in favour of the claimants and that they either "indulged in unnecessary lies" or 'made a deliberate false statement'. The basic mistake committed by the <ORG> in this context was to think that P.Ws. 1 and 2 were not independent witnesses. The reason given by the <ORG> for coming to that conclusion was that P. W. 2 admitted that he was a friend of P.W.1 and that they were therefore, 'highly interested in each other'. The <ORG> thought that, that being the position it was necessary for the claimants to produce some other independent evidence.

34. It is true that P. W. 2 stated that he was a friend of P. W. 1, but the fact that there was such friendship between them cannot necessarily lead to the inference that they were highly interested in each other. The only interest which one might have had in the other can be no higher than the ordinary interest which normally one friend has in the other. But the real question is not whether P W 2 was a friend of P W 1 but whether any of these two witnesses had any reason to give false testimony in favour of the claimants.

A witness is generally characterised as an interested witness only when it is established or proved that there is some kind of Interest in the success of the party on whose behalf and in whose favour he gives evidence. If the two witnesses who have no such bias in favour of the party who calls them to give evidence but are however, interested In each other, it would be unreasonable to think that they are not Independent witnesses.

From the point of view of the claimants who called P. Ws. 1 and 2 to give evidence it is seen that they were disinterested witnesses unless it was established that there was some reason for thinking that they were themselves interested in the success of the claimants. That interest is, to my mind, not established though an ingenious argument was advanced before us for the first time before this <ORG> that P. W. 1 gave evidence in support of the claimants with the intention of escaping from his own liability to pay compensation to the claimants under the provisions of the Workmen's Compensation Act .

35. Not even the <ORG> was disposed to think that, that was why P. W. 1 gave his evidence.

37. (After discussing the evidence, in paras 35 and 36 the judgment proceeds: Mr. <NAME> appearing for the Insurer suggested to us that P. W. 1 might have felt persuaded to give false evidence out of humanitarian considerations and out of deep sympathy and commiseration for the destitute dependents of <NAME>. It seems to me that, that argument is really groundless. It was not suggested that, there was any reason for P. W 1 to evince any such inordinate interest in supporting the claimants. All that is in evidence is that <NAME> was an employee under <ORG> and on the dale of the accident, P. W. 1 was taking <NAME> to his customers to introduce them to him. It does not appear that there was even any casual acquaintance, between any of the claimants and either P.W. 1 or P. W. 2.

38. The <ORG>, however, thought that the journey performed by <NAME> and Padmanabha at the time of the accident was itself improbable.

39. (After discussing the evidence in para. 38, the judgment proceeds:) The approach In the <ORG> was at the inception misconceived, That misconception consisted of the fact that in its opinion the bus would have stopped on the crown of the road if the evidence of P. Ws 1 and 2 was true Of the sustainability of that inference, there has been sufficient discussion. If the <ORG> had not landed itself in that wrong finding, it is obvious that it would have had no hesitation in acting upon the evidence of P. Ws. 1 and 2.

40. Now there is one reason why we should say that P. Ws I and 2 are demonstrated to be witnesses of truth. No respondent in any one of the defences which they have produced alleged that <NAME> was on the wrong side of the road. As already observed, although an attempt was made to establish for the first time in the cross-examination of P. W. 1 that he was on the wrong side of the road, that endeavour did not succeed since P. W. 1 denied it. But what is of significance is that when P. W. 2 gave similar evidence that <NAME> was on the correct side of the road, that part of the evidence was not subjected to any cross-examination. It was not suggested to him as in the case of P. W. 1 that he was on the off-side of the road. But what is of greater importance is that when respondent 1 gave evidence as R. W. 1, he did not state in his examination-in-chief that <NAME> was on the wrong side. Even when he was cross-examined what he stated was that he did not observe on which side of the road <NAME> was riding his bicycle.

41. So, what follows is that the evidence of P Ws. 1 and 2 stands uncontroverted and there is nothing inherently improbable in that evidence.

42. Our attention, however, was asked by Messrs <NAME> and <NAME> to the sketch Exhibit P-2. from which, according to them, it is clear that the bicycle ridden by <NAME> was at a point 3' 7" from the eastern edge of the pavement, while the body of <NAME> was still further to the East of that point at a distance of 1' 10" from that pavement. We were asked to say that the collision was at the point where the bicycle was found and that the body of <NAME> must have been carried 1' 9" beyond with the vehicle when his body was dragged. The argument constructed was that if that was how the accident really happened, the evidence of P. Ws. 1 and 2 that <NAME> was on the correct side of the road would stand displaced.

43. But the answer to this argument consists of that which emerges from the evidence of P. Ws. 1 and 2 whose evidence was that after the collision <NAME>'s body and his bicycle were dragged by the bus and the rear wheels in which they had both become entangled over a distance of 10 feet. One can easily' imagine that if that was bow the incident must have happened, there was nothing really intrinsically improbable about that version. During that process the bicycle must have got disentangled earlier than the body and so it is that we find in Exhibit P. 2 there is a distance of 1' 9" between the bicycle and the body and the bicycle itself is nearer the eastern side of the road than the other side. But that surely cannot support the submission placed before us that the point where the bicycle is shown in the sketch is really the place of the collision.

44. The proposition placed before us that in a proceeding like the one before us in which compensation is claimed on the ground of negligence, the burden of establishing actionable negligence on the part of the driver who drove the motor vehicle is entirely upon the claimants is unexceptionable. It is for the claimants to prove such negligence and the question is whether it has been proved.

It is a firmly established rule that a person driving a motor vehicle on a highway must drive the vehicle with reasonable care, strictly observing the traffic regulations and the rules of the road, so as not to imperil the safety of other persons whether they are pedestrians or cyclists or others who have a similar right Io use the high-way on which he drives it. So what is to be established is that respondent 1 in the case before us drove Ins motor vehicle without exercising that reasonable care that was expected of him. If he drove his motor vehicle on the correct side of the road, it would be easy to infer that the collision was on that stretch of the road and that there was no negligence, but, if on the contrary, the evidence establishes that the collision was on the off-side of the road from the direction in which the driver was proceeding, the fact that he did so is prima facie evidence of negligence unless it is established that in the circumstances it was reasonable on the part of the driver to depart from the correct side of the road and stray into the off-side.

45. In the circumstances of this case it is not very difficult to think that it was extremly unreasonable on the part of respondent 1 to drive his motor vehicle on the off-side of the road. The road was a narrow road on which there was heavy traffic which was unusually heavy at the time of the accident, by reason of the school children and cyclists using the highway on both sides of it. Respondent 1 did not explain why and for what reason he drove on the off-side. Since in my opinion we should believe the evidence of P. Ws. 1 and 2 that he did so and since we should dissent from the <ORG>'s finding that <NAME> was riding on the wrong side, what follows is that the collision happened when <NAME> was on the right side and respondent 1 was on the wrong side. So, it became necessary for him to explain how it was that he brought his bus into the off-side of the road instead of keeping it on the correct side. He offered no explanation whatsoever for having done so, but on the contrary he stated something surprising in the course of his evidence.

46. What respondent 1 stated was that he did not see on which side of the road <NAME> was riding his bicycle. He stated that he was driving the motor vehicle at 15 or 20 miles an hour and that when he was near the bus stand, he heard a sound from the rear side of the vehicle and shouts from the people in the neighbourhood. He added that he stopped the bus and saw <NAME> lying on the road with blood exuding from his head. It seems to me that we should not believe the evidence of respondent 1, It is not easy to believe that he did not observe on which side of the road <NAME> was riding his bicycle. It is not also easy to believe that he never knew how the accident happened until he stopped the bus and found <NAME> in an injured condition.

47. It is Incontrovertible that a person driving a motor vehicle must keep a good look out In all directions of the road, on the sides and on the stretch of the road in front of him. The evidence of P. W. 1 is that near the place of the accident, the road was a straight road there was clear visibility over a distance of about a furlong So, respondent 1 should have bean able to see if he was really keeping that good lookout which was expected of him that <NAME> was riding a bicycle right in front wrong on his part to drive his bus on that stretch of the road which was really the wrong side for him. The very ordinary care expected of him required him to stop the bus in that situation by the application of brakes so that there may be no peril or danger to <NAME> who had an equal right to use the highway and was using the right part of it unlike the first respondent.

48. Far from having done anything of the kind, respondent 1 tried to make it appear that he did not even observe the fact that <NAME> was on his own right side of the road. On the contrary, he said that he was driving his bus at a speed between 18 and 20 miles an hour. Although P. W. 1 did not state the exact speed at which the motor vehicle was driven, the effect of his evidence is that it was being driven at a high speed. The evidence of P. W. 2 was similar. P. W. 4 was called to give evidence that at a point a furlong or a furlong and a half behind the scene of occurrence and before respondent 1 collided against <NAME> respondent 1 overtook another bus in which P. W. 4 was travelling. P. W. 4 stated that he apprehended when respondent 1 did that, that he would involve himself in an accident, as indeed he did. His evidence was that the bus in which he was travelling was being driven at 20 or 25 miles an hour which means, that the speed at which respondent 1 drove his bus was higher.

49. On the question of speed it should be observed that the mere fact that a motor vehicle is driven at a high speed is by itself not conclusive of any negligence. The speed at which a motor vehicle may be driven is the speed which in the circumstances is reasonable. While: it may be negligence on the part of a driver to drive a motor vehicle in a very crowded road even at ten miles an hour, one who drives his motor vehicle even at sixty miles an hour over a stretch of a high-way over which there is little or no traffic may not constitute negligence. Further, the evidence of P. Ws. 1, 2 and 4 on the question of speed at which the motor vehicle was driven by respondent 1 may be said to be approximate estimates made by men who could not possess the competence to judge accurately the speed of the vehicle.

50. But what, however, transpires is that from the point of view of the three witnesses the speed was on the side of being excessive. It seems to me that they were right in thinking so particularly since the evidence of P. W. 4 reveals that on the very narrow and crowded road, respondent 1 overtook another bus which was indeed a very perilous thing for him to do and within a furlong and more after he had done so, he knocked down <NAME>. P. W. 1 was able to escape from being knocked down himself in consequence of his having been able to get away from the road which <NAME> however was not able to do

51. It is also seen from the evidence of respondent 1 that he must have been driving his motor vehicle at a speed which was somewhat excessive. He gave evidence that between the two points which he described as Hampankatta and Kulur, he had to make eight trips according to the instructions given to him in six and half hours. The effect of his evidence is that each such trip would occupy an hour What be said was that the journey from Hampankatta to Kulur would occupy half an hour, which means, that the return journey would also occupy the same time. So, for the eight journeys he had to per-form between the two places, the time that he would have required is eight hours but he had to compress those eight journeys within six and half hours. That perhaps is the reason why respondent 1 was rushing from Kulur to Hampankatta at the time of the Incident and over-look the bus to which P. W. 4 was travelling. In that process, he must have been moving for the purpose of avoiding the other traffic on the road, from the correct side to the off-side and from the off-side to the correct side and it must have been during one of those perambulation that he found himself on the off-side when <NAME> was right in front of him.

52. What I have discussed so far is sufficient to establish such negligence as the claimants had to prove. But it was urged before us that we should desist from reaching that conclusion since the claimants did not call any of the passengers who were travelling in the bus driven by respondent 1 to give evidence. It was also said that P. W. 2 admitted that he was not examined In <ORG> where respondent 1 was prosecuted for rash and negligent driving, and, that he was not so examined probably on the ground that he was not a witness to the occurrence. It does not appear to me that it was either necessary for the claimants to examine the other passengers in the bus or that the evidence of P. W 2 could be disregarded on the ground that he was not examined in <ORG> It is not shown that P. W. 2 was not cited in the charge-sheet and it is just possible that P. W. 2, although cited, was not examined on the ground that he was only duplicating the evidence given by the others. If the evidence of P. Ws. 1 and 2 strikes us as evidence of witnesses of truth, as it should strike us, their evidence cannot be excluded or distrusted on the ground that some other witnesses might have been examined by the claimants.

53. Our attention was asked to the evidence of respondent 1 who stated that there were no marks on the bus, which Mr. <NAME> urged should have been found if really the collision was in manner described by P. Ws. 1 and 2. Respondent 1 did say that there were no such marks, and, that, to my mind is by no means conclusive. The question whether a collision leaves traces of it on the body of the bus is dependent on the manner in which it occurs, and, if soon after <NAME> was knocked down by the bus, neither his bicycle nor he came into contact with the broad side-of the bus and went underneath the wheels, no one should feel surprised if there were no dents or scratches, and, beyoad the evidence of respondent 1, there is really no other trustworthy evidence that there was not even a scratch on the body of the bus.

54. It was next urged before us that there was no indication in the sketch Exhibit P. 2 that, there were any marks left on the road when Padmanabha and his bicycle were dragged along it, and that if really the incident happened as described by the witnesses, respondent 1 must have suddenly jammed the brakes which would have left some traces on the road. But this argument assumes that there wore no such marks on the road but depends upon en-tirely on the sketch Exhibit P. 2 which does not refer to any such traces. But Exhibit P. 2 does no more than to delineate the topography and if it does not state that there were any marks on the road, it does not follow that there were no such marks.

55. At one stage to the argument Mr. <NAME> asked us to say that since respondent 1 was acquitted by the Magistrate in the prosecution launched against him for rash and negligent driving, that acquittal to some extent negatives the negligence imputed to him. It is obvious that the order of acquittal upon which Mr. <NAME> depends cannot be used In that way. We nave to found our conclusion as to negligence upon the material before us and the purpose for which the order of acquittal can be used is only to prove that there was an order of acquittal and nothing more.

56. When P. Ws. 1 and 2 were in the box, no questions were put to them to support the theory which was really advanced and propounded by respondents 1 and 3. That theory to which respondent 2 however, did not subscribe was that <NAME> was not quite steady on the bicycle which he rode, and that when the accident happened, he looked behind for some inexplicable reason, lost his balance and fell on the road and met with his death. The evidence given by P. W 3, the Resident Medical Officer makes it abundantly clear that <NAME>'s injuries were not caused by the fall on the road and that those injuries are attributable to the fact that he was caught under the wheels of the bus and crushed. The <ORG> was right in depending upon the evidence of P. W. 3 in coming to that conclusion.

57. But what is surprising is that, to P. Ws. 1 and 2, no suggestion was made that when Padmanabha rode his bicycle in manner stated in the defence, he was unsteady on the bicycle, looked behind and fell down. The only suggestion made for the first time and that in the evidence of P. W. 1, was, that Padmanabha was on the wrong side of the road and nothing more. Mr. <NAME> however, asked attention to the evidence of Padmanabha's mother P. W. 5, who stated that Padmanabha was only a learner and that he bad commenced to learn cycling at the time of the accident and that it was therefore, very probable that when Padmanabha rode his bicycle in a crowded street, he was not able to control the bicycle or maintain his balance and must have found himself right in front of the bus when it was coming on the road. To say that Padmanabha was a learner is one thing and it is quite a different thing to say that while he was riding his bicycle before he had perfected the art of riding a bicycle, he found himself on the wrong side of the road. That he did so is not proved. Whatever may be the perils which a person who has not yet mastered the art of riding a bicycle encounters when travelling along a road which is full of traffic, if really he was keeping on the correct side of the road and a motor vehicle coming from the opposite direction on the off-side of the road knocks him down, the fact that the cyclist was a learner can surely be no defence to a claim to compensation on the ground of negligence.

58. I should have mentioned that during the arguments before us the evidence of P. W. 1 was subjected to the criticism that it was at variance with that given by <NAME>'s mother P. W. 5, on the question as to the duration of the employment of <NAME>.

59. (After discussing the evidence the judgment proceeds): Dissenting, therefore, from the <ORG> we should, in my opinion, say that respondent 1 drove his motor vehicle in a rash and negligent way and collided against <NAME> who was riding his bicycle on the correct side of the road without there being any negligence on his own part. That finding is what supports the claim to damages.

60. What should therefore, now, to be considered is the measure of damages. The evidence of P. W. 1 was that <NAME> at the relevant point of lime, was earning Rs. 90 a month under him. The <ORG> was disposed to think that his evidence could not be accepted since in its opinion it was not probable that a milk vendor like P. W. 1 would have paid a salary of Rs. 90 a month to <NAME>.

61. P. W. 1 was asked whether he had maintained any accounts and some questions were put to him as to whether he paid any sales-tax and he stated that he did not pay. It is surely unreasonable to expect a milk vendor like P. W. 1 to maintain accounts having regard to the business carried by him. But to my mind there is nothing improbable in <NAME> being paid a salary of Rs. 90 a month for the work which he was doing under P. W. 1 It was urged before us that in Exhibit P-4 there is no statement that <NAME> was getting a salary of Rs. 90 a month But that would not be a reason for distrusting the evidence of P. W 1. It is just probable that the notice stated nothing about it either for the reason that it was considered to be a matter which need not be mentioned in the notice or because, the claimants had no information about the exact salary which <NAME> was receiving.

62. However that may be, the <ORG> thought that <NAME> might have been earning Rs 50 a month at the time of the accident and that according to reasonable expectations, he would have been able to earn Rs. 100 sometime later and that the pecuniary loss sustained by the claimants would be a loss extending over a period of 15 years according to ordinary and reasonable expectations. Out of the sum of Rs, 50, the <ORG> thought that a sum of Rs. 25 would be required by <NAME> towards his own expenses, and, the pecuniary loss was the remainder. That was capitalised by the <ORG> over a period of 15 years and the conclusion reached was that Rs. 4,500 would be the proper measure of compensation.

63. Mr. <NAME>, to my mind, is right in urging that this assessment of the compensation does not rest upon any evidence or on any acceptable principles.

64. The argument maintained by him was that the <ORG> should not have kept aside positive evidence which afforded a satisfactory basis for the computation of damages and indulged in mere speculation as to the income which <NAME> was earning when he was killed.

65. This submission is not without substance.

66. The evidence of <NAME> that <NAME> was earning a salary of Rs. 90 a month stands corroborated by the evidence of his mother <NAME> who stated that he was getting a salary of Rs. 90 a month. Her evidence was also to the effect that even during the period when he was doing some kind of other work, he was earning Rs. 3 a day. Her own income, according to her was Rs. 9 a week. Taking all the circumstances into consideration, it seems to me, that it was really not right on the part of the <ORG> to discard all this evidence and to arrive at the conclusion that <NAME> could not have been earning more than Rs. 50 a month when he died. We should, I think, proceed upon the basis that he was earning Rs. 90 a month then.

67. The <ORG> thought that <NAME> would have been able to earn a larger income as he grew older and it was right in coming to that conclusion. The <ORG> capitalised the income over a period of fifteen years, and, it is not contended before us by the learned advocates appearing for the respondents that, that capitalisation was excessive. We should take Rs. 90 as the income of <NAME> at the time of the accident and compute the pecuniary loss having regard to normal and ordinary expectations, and, making allowances for either loss or diminution of the earning power in consequence of unforeseen events, such as death, illness and the like, and also discounting the amount suitably for the reason that the claimant would receive in a lump sum the amount so computed.

68. Now, even if out of Rs. 90 which <NAME> was earning, a moiety can be said to have been required for the personal expenses of <NAME> and the remainder is capitalised in manner done by the <ORG>, and, it is suitably discounted, the compensation claimable by the claimant would be in excess of Rs 5.000 which the claimants have claimed. In that view of the matter, the compensation which was claimed cannot be said to be excessive

69. Messrs. <NAME> and <NAME> appearing for respondents 2 and 3 respectively did not contend before us that the assessment made by the Tribunal of the compensation payable was excessive or that if the compensation was assessd at Rs. 5,000 any exception could be taken to such assessment.

70. In reversal of the award made by the <ORG>, we should now make an award that claimant 1 who is the only legal representative of the deceased <NAME> is entitled to be paid a compensation of Rs. 5,000.

71. Now, the question is as to who should pay this amount to the first claimant <NAME>. At one stage, it was suggested by the respondents that a claim for compensation under Section 110-A of the Motor Vehicles Act could not lie against the driver of the motor vehicle. That was also the contention which was raised on behalf of respondent I, but, respondent 1 has not appeared before us and no one represents him. We have been taken through the relevant statutory provisions, and, it appears to me that a claim for compensation can be made under Chapter VIII of the Motor Vehicles Act not only against the owner of the motor vehicle and the insurer, but also against the driver whose negligence produces the claim for compensation.

72. Section 110 empowers <ORG> to constitute <ORG> for the purpose of adjudicating upon claims to compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles. Section 110-A creates the right to make an application for compensation arising out of such accident. Section 96 of the Act creates a liability to pay such compensation on the part of the insurer. Section 110-F bars the jurisdiction of Civil Courts to make adjudications which could be made by <ORG> for the area for which such Tribunal has been constituted. There is no provision forbidding the recovery of compensation through the machinery provided by Chapter VIII from the driver of the motor vehicle who is principally responsible for the death or injury if there be negligence on his part. It is clear that a claim for compensation against him could be made only under the provisions of that Chapter to <ORG> and not to <ORG> whose jurisdiction is barred by Section 110-F .

73. The consequence of holding that no claim can be made against the driver under Chapter VIII would be that the driver who is the principal architect of the misfortune which befell the deceased or the injured could not be proceeded against for recovery of compensation either under the Motor Vehicles Act or in <ORG>. An interpretation leading to such a result cannot be sound. In my opinion, the claim against the driver under Chapter VIII is possible in the same way in which it is possible against the owner and the insurer.

74. It is nut urged before us that the insurer is not liable to pay to claimant 1 the entire sum of Rs. 6,000 which has been assessed to be the compensation claimable by claimant 1.

75. The award which we should make in this appeal should be that, claimant 1 is entitled in recover from respondents 1, 2 and 3 the sum of Rs. 5,000 as compensation. She is also entitled to recover interest at four per cent on this sum of money from July 6, 1964, when the <ORG> made its award until the date of payment. In addition. The award shall also specify that, the entire amount of the decree, namely, the compensation, the interest thereon and the costs shall all be paid by the insurer towards its liability under the policy of insurance. Claimant 1 shall be at liberty to execute the award against all or any of the respondents as she shall select.

76. Claimant 1 will also be entitled to her costs both in this appeal as well as in the proceedings before the <ORG> and, these costs shall be payable by respondents 1, 2, and 3.

Chandrashekhar, J.

77. I agree.

78. Appeal allowed.


PETITIONER: <NAME> AND ANOTHER Vs. RESPONDENT: DISTRICT MAGISTRATE, <NAME> DATE OF JUDGMENT13/09/1983 BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J) CITATION: 1983 AIR 1130 1983 SCR (3) 939 1983 SCC (4) 301 1983 SCALE (2)280 CITATOR INFO : R 1984 SC1334 (21) R 1985 SC 18 (13) RF 1988 SC 596 (6,7,10,12) RF 1988 SC1835 (8) R 1989 SC2027 (20) R 1989 SC2265 (13) D 1990 SC 516 (8) RF 1990 SC1196 (11) RF 1990 SC1202 (10) ACT: National Security Act , 1980 (Act 65 of 1980)-Orders of detention, passed under sub-section (2) of Section 3 of the Act, on the ground that "the subject who is in jail and is likely to be released on bail, if allowed to be at large, will indulge in activities prejudicial to the maintenance of public order"-Whether the detention is bad either on the ground that there was no case made out for apprehension of breach of public order or that the criminal proceedings having been initiated, no case of preventive detention arises or that the case is one of law and order and not a case of public order or that there being no allegation in the First Information Report, the detaining authority cannot invent a new ground to fall under sub-section (2) of section 3 of the Act. HEADNOTE: Dismissing the petitions, the <ORG> ^ HELD: 1. The clear words of the detention order show that the detaining authority was alive to the fact that the petitioners were in jail custody on the date of passing of the detention orders, but it was satisfied that if they were enlarged on bail, of which there was every likelihood, they would create problems of public order and, therefore, it was necessary to prevent them from doing so. The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time, in which situation there could be no apprehension of breach of public order from them. [944 C-E] 2. Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. In the circumstances the pendency of a criminal prosecution is no bar to an order of preventive detention, nor is an order of preventive detention a bar to prosecution. It is for the detaining authority to have the subjective satisfaction whether in such a case there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to public order or the like in future. [944 F-H] K.M. Chokshi v. State of Gujarat,  4 SCC 14, applied. 3.1. The difference between 'law and order' and 'Public order' is now well settled. Applying the well settled law enunciated in <NAME> 940 v. The State of West Bengal, 3 SCR 301, to the two incidents, it is clear that throwing a bomb in a large gathering where a cultural programme was going on at the dead of night resulting in the public running helter and skelter to save their lives makes out a case of 'public order' inasmuch as it disturbed the tranquillity and the even tempo of life of the public. Therefore, if the detaining authority was satisfied that the two incidents make out a case of apprehension of breach of public order, the detention order cannot be faulted. [945 G; 946 E-G] <NAME> v. State of West Bengal,  3 S.C.R. 301 followed. <CITATION> , AIR 1982 SC. 1297, distinguished. 3:2. The two incidents in the instant case were sufficient for the detaining authority to initiate proceedings for preventive detention. It is for the detaining authority to have the subjective satisfaction about the apprehension of the breach of public order from the incidents. Even one incident may be sufficient to satisfy the detaining authority. It all depends upon the nature of the incident. [947 G-H] 4. The absence of an allegation about the disturbance of public order in the two First Information Reports will not affect the position because there was additional material before the detaining authority which satisfied him about the apprehension of breach of public order from the petitioners in case they were enlarged on bail. [948 C-D] JUDGMENT:

EXTRAORDINARY ORIGINAL JURISDICTION : Writ Petition (Criminal) Nos. 678 and 679 of 1983.

(Under article 32 of the Constitution of India) Miss <NAME> for the Petitioners.

<NAME> for the Respondent.

The Judgment of the Court was delivered by <ORG> These two connected petitions seek to challenge the orders of detention dated 2nd December, 1982 passed by the District Magistrate, Dhanbad in exercise of powers conferred by subs. (2) of s. 3 of the National Security Act, 1980 (No. 65 of 1980) read with notification No. 3183/C dated 15th of October, 1982 of <ORG>.

<NAME>, the petitioner in the first petition, is an employee of <ORG> working at <ORG> as a dumper driver. <NAME>, the petitioner in the second Petition, is also a dumper driver in Gopi Nathpur Colliery.

The object of the order of detention as indicated in the impugned order was to prevent the petitioners from acting in any manner prejudicial to the maintenance of public order. The grounds of detention supplied to the petitioners are in identical terms and they are as follows:

"1. That on 15/16.10.82, at about 2.30 A.M. the subject alongwith <NAME> and 3 others went to Khudia Colliery and dragged one <NAME> who were witnessing a cultural programme and started assaulting him in presence of large gathering who were there to see the cultural programme. This created great panic and alarm in the area and adversely affected the public order. Hearing the cry, <NAME> came there but seeing the subject and his associates engaged in the assault of his brother started running away for his life. The subject and his associates, with an intention to establish criminal supremacy and to kill him threw two bombs on him, resulting in grievous injury to <NAME>. This adversely affected the public order and persons who were witnessing the cultural programme started running helter and skelter for their lives. This refers to Nirsa P.S. Case No. 189 dated 6.10.1982 u/s 307/34 IPC , 3/5 Explosive Sub. Act. Thus the subject acted in a manner prejudicial to the maintenance of the public order.

2. That on 8.11.82, at about 11.30 A.M. the subject alongwith <NAME>, <NAME> and <NAME> armed with bombs, gun, etc. went to the house of <NAME> in Khudia Colliery. One of his associates under the direction and guidance of the subject opened fire on <NAME> resulting in grievous injury to him. Opening of gun fire in a thickly populated residental colony of Khudia Colliery created great panic and alarm in the area and adversely affected public order. This refers to Nirsa P.S. case No. 208 dated 8.11.82 u/s. 307/34 I.P.C . and s. 27 Arms Act. Thus the subject acted in a manner prejudicial to the maintenance of public order. The subject is in jail and is likely to be released on bail. As such the detention order was served in jail. In the circumstances I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order.

For prevention of such activities, I consider his detention necessary. <NAME> is informed that he may make a representation in writing against the order under which he has been detained. His representation, if any, may be addressed to the Deputy Secretary, <ORG>, Govt. of Bihar, Patna and forwarded through the Superintendent of jail, Dhanbad as early as possible."

The orders of detention were sequal to two incidents of 15/16th October and 8th November, 1982 giving rise to two criminal cases, Nirsa P.S. Case No. 189 and Nirsa P.S. Case No. 208 of 1982 respectively. The petitioner <NAME> was arrested on 8th November, 1982 while the petitioner <NAME> was arrested on 12th of November, 1982 in connection with the aforesaid incidents.

The petitioners made representation against the order of detention in both the cases and the representations were on the same pattern. Their stand was that they were active members of the union of workers of the colliery, viz., <ORG> There were other unions in the said collieries and due to some inter union rivalry a first information report against them was lodged by persons belonging to a rival union for an alleged offence under ss. 307 / 34  and 27 A of the Arms Act . In the first information report it was alleged that on 8th November the informant was shot in his hand near his house by one <NAME> and that at that time the petitioners were with the said <NAME>. Their intention was to kill him because he did not participate in the strike in the colliery. In the first information report regarding the other.

incident under ss. 307/34 IPC and ss. 3 / 5 of the Explosive Substances Act it was alleged that on the night of 15/16th October 1982 around 2 A.M. the petitioners were beating the brother of the informant near a school, where some function was going on. On seeing the petitioners in the company of others the informant started running but he was chased by others and a bomb was thrown at his back but he escaped. But <NAME>, the petitioner, threw another bomb and the informant was injured at his back and fell. The said persons intended to kill him. The petitioners in both the cases were later on granted bail but the two criminal cases mentioned above are still going on.

By an order dated 13th December, 1982 the Government approved the detentions order and informed the petitioners by letter dated 30th December, 1982 of the reference of their representation to <ORG> asking them to appear in person before the <ORG>. The petitioners appeared in person before <ORG>.

<ORG> eventually gave an opinion that the order of detention was justified. On the basis of that report the Government ordered detention of the petitioners upto 2nd December, 1983. The petitioners challenged the order of detention by filing writ petitions in <ORG> but the same were dismissed in limine. The petitioners instead of filing an appeal against the order of <ORG> rejecting the writ petitions have chosen to file the present petitions under Art. 32 of the Constitution.

The contentions raised on behalf of the petitioners are fourfold:

1. The petitioners were in jail when the detention orders were passed, when there was absolutely no apprehension of breach of public order from them.

2. The two incidents on the basis of which the proceedings for preventive detention had been started were already the subject matter of criminal proceedings and in the circumstances the proceedings for preventive detention were absolutely uncalled for.

3. At the most the two incidents make out a case of law and order and not a case of public order.

4. In the absence of any allegation in the first information reports of the two incidents about the apprehension of the breach of public order from the petitioners the detaining authority could not invent a ground regarding apprehension of breach of public order from the petitioners.

It may be pointed out at the very outset that the detaining authority was alive to the fact that the petitioners were in jail custody on the date of the passing of the detention orders as will be clear from the following statement in the grounds of detention:

"The subject is in jail and is likely to be released on bail. In the circumstances I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order."

The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time. In such a situation there could be no apprehension of breach of 'public order' from the petitioners. But the detaining authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood, they would create problems of public order. It was, therefore, necessary to prevent them from acting in any manner prejudicial to public order.

As regards the contention that the criminal proceedings as well as the proceedings for preventive detention could not go together, it may be pointed out that preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. In the circumstances the pendency of a criminal prosecution is no bar to an order of preventive detention, nor is an order of preventive detention a bar to prosecution. It is for the detaining authority to have the subjective satisfaction whether in such a case there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to public order or the like in future.

The learned counsel for the petitioners relied upon <NAME> v. State of Gujarat(1) in support of the contention that in view of the criminal prosecution of the petitioners for the two incidents, proceedings for the preventive detention were uncalled for. In that case the <ORG> after an analysis of the various cases cited observed:

The principles energing from a review of the above cases may be summarised in the following way: The ordinary criminal process is not to be circumvented or short-circuited by ready resort to preventive detention. But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention."

It is obvious from the above observation in the case cited on behalf of the petitioners that criminal prosecution is not an absolute bar to an order of preventive detention. If the detaining authority has the subjective satisfaction that it was necessary to detain the petitioners to prevent them from indulging in activities prejudicial to public order, he could certainly order detention of the petitioners. In the instant case the detaining authority clearly stated that although the petitioners were in jail, they were likely to be enlarged on bail and in that case there would be apprehension from the petitioners regarding the breach of public order.

This leads us to the third contention that the two incidents makes out a case of law and order and not a case of public order. The difference between 'law and order' and 'public order' is by now well settled. <CITATION> (1) this Court observed:

"It may be remembered that qualitatively, the acts which affect 'law and order' are not different from the acts which affect 'public order'. Indeed, a state of peace of orderly tranquillity which prevails as a result of observance of enforcement of internal laws and regulations by the Government, is a feature common to the concept of 'law and order' and 'public order. Every kind of disorder or contravention of law affects that orderly tranquillity. The distinction between the areas of 'law and order' and 'public order' as pointed out by this Court in <CITATION> , "is one of degree and extent of the reach of the act in question of society." It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of 'law and order' and 'public order' may have a common 'epicentre', but it is the length, magnitude and intensity of the terror-wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning 'law and order'."

Applying the well-settled law on the question we have to determine whether the two incidents make out a case of 'law and order' or 'public order'. It was for the detaining authority to have the subjective satisfaction that there was apprehension of breach of public order from the petitioners. In one incident one of the petitioners threw a bomb in a large gathering where a cultural programme was going on at the dead of night whereupon the public started running helter and skelter to save their lives. That will in our opinion make out a case of 'public order' in as much as it disturbed the tranquillity and the even tempo of life of the public. The second incident was also of the same nature. If the detaining authority in the circumstances was satisfied that the two incidents make out a case of apprehension of breach of public order we find no infirmity in the order.

Reliance was also placed upon <CITATION> .(1). In that case also a criminal case was started on the basis of an incident and there being no suggestion that the witnesses were not forthcoming in connection with the alleged infraction of law it was not clear why normal procedure of investigation, arrest and trial was not found adequate to thwart the criminal activities of the detenu, and in these circumstances this Court held that there was non-application of mind of the detaining authority which became evident from the frivolity of grounds on which the detention order was founded. The order of detention was, therefore, invalid. But this Court did lay down the law in the following terms:

"It is not for a moment suggested that power under the preventive detention law cannot be exercised where a criminal conduct which could not be easily prevented, checked or thwarted, would not provide a ground sufficient for detention under the preventive detention laws. But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. If every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law."

The facts of that case were distinguishable from the facts of the present case. In the present case the detaining authority had the subjective satisfaction that if the petitioners are allowed to remain at large, they will indulge in activities prejudicial to the maintenance of public order.

Now the question arises whether the two incidents were sufficient for the detaining authority to initiate proceedings for preventive detention. It is for the detaining authority to have the subjective satisfaction about the apprehension of the breach of the public order from the incidents mentioned above. Even one incident may be sufficient to satisfy the detaining authority. It all depends upon the nature of the incident. In the case in hand the detaining authority was fully satisfied that there was apprehension of breach of public order from the petitioners in case they were bailed out, of which there was every likelihood. This contention in our opinion has no force.

This leads us to the last contention that in the absence of any allegation in the first information report in the two cases about the disturbance of public order the detaining authority could not invent a ground regarding the apprehension from the petitioners about the disturbance of public order. A counter affidavit has been filed on behalf of the detaining authority and in paragraph 3 it has been averred that apart from the first information report in the two cases there was the supervision note of the Deputy Superintendent of Police, Dhanbad and the detaining authority was satisfied on the basis of materials before him that there was apprehension of breach of public order from the petitioners. The absence of an allegation about the disturbance of public order in the two first information reports will not effect the position because there was additional material before the detaining authority which satisfied him about the apprehension of breach of public order from the petitioners in case they were enlarged on bail. This contention has, therefore no substance.

For the foregoing discussion we find no force in any of the contentions and the petitions must fail. They are accordingly dismissed.

S.R. Petitions dismissed.


CASE NO.: Appeal (crl.) 450 of 1997 PETITIONER: <NAME> RESPONDENT: <NAME> and another DATE OF JUDGMENT: 26/02/2004 BENCH: N. SANTOSH HEGDE & B.P. SINGH. JUDGMENT:

J U D G M E N T B.P. Singh, J.

The appellant in this appeal by special leave is aggrieved by the order of <ORG> at Ernakulam in Crl. M.C. No. 2192 of 1996 dated 21st February, 1997 whereby a learned Judge of <ORG> while allowing the application filed under Section 482 of the Code of Criminal Procedure quashed the order of the Special Judge, <NAME> whereby he had taken congnizance of the offences under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989 (hereinafter referred to as the '1989 Act' and Section 7 (1)(d) of the Protection of Civil Rights Act , 1955. <ORG> held that none of the offences above mentioned were made out on the basis of the complaint and the material placed before the learned Special Judge.

In view of the order, which we propose to make, it is neither necessary nor advisable to refer to the facts of the case in detail lest it may prejudice the case of the parties in any proceedings in future. However it is necessary to briefly recapitulate the broad facts which give rise to the instant appeal.

The appellant herein, the complainant, claiming to be a Member of <ORG> and belonging to a Scheduled Caste known as 'Pathiyan' and practicing as a doctor by profession owing allegiance to <ORG> (I) filed a complaint in <ORG> for the trial of offences under Act 33 of 1989 at Thalassery. In his complaint he alleged that respondent No.1 belongs to Nair community, which is not a scheduled caste, was a prominent leader of <ORG> (Marxists). He at the relevant time held the office of Chief Minister of the State of Kerala and was contesting bye-election to <ORG> from the Thalassery Assembly Constituency. A Convention of the Left Democratic Front was convened on September 20, 1996 in the evening at the Town Bank Auditorium, Thalassery in which respondent No.1 made a speech wherein he made certain disparaging observations wilfully and deliberately emphasizing the fact that the complainant belongs to a lower and inferior category of MLA being a member of a scheduled caste. Respondent No.1 emphasised the fact that the appellant was a Harijan and made derogatory remarks about the complainant. This was done in full view of the public assembled in the Auditorium. Respondent No.1 is alleged to have stated as follows :-

"There is an MLA. <NAME>, that Harijan MLA, he climbed over the table and was dancing. Is this the democratic manners of <NAME>? "

This was the statement attributed to respondent No.1 by witness No.1 examined on behalf of the appellant. According to the complainant respondent No.1 stated :- "the other thing, that <NAME>, one <NAME>, he was dancing on the table".

Though there is a slight variance about the exact words used by respondent No.1, the statement was to this effect.

The learned Special Judge on a consideration of the statement of the complainant on oath and the statements of two other witnesses examined before it, came to the conclusion that in the facts and circumstances of the case, the commission of an offence under Section 3(1)(x) of the 1989 Act and under Section 7(1)(d) of the Protection of Civil Rights Act was made out. He, therefore, took cognizance of the aforesaid offences and issued process summoning respondent No.1 to stand trial.

The order of the Special Judge <NAME> was challenged by respondent No.1 before <ORG> which by its impugned order quashed the order of the Special Judge taking cognizance, finding that no offence was made out under either of the two Acts. Aggrieved by the judgment and order of <ORG> the appellant has preferred this appeal by special leave. At the threshold counsel for respondent No.1 submitted that <ORG> constituted under the 1989 Act had no jurisdiction to entertain the complaint, take cognizance and issue process against respondent No.1. Relying upon the decisions of this Court it was submitted that the Special Judge constituted for the trial of offences under the aforesaid 1989 Act could only exercise the powers of <ORG> in accordance with the procedures laid down under the Code of Criminal Procedure. It was submitted that unless an order of committal was made by a competent Magistrate committing the accused to stand trial before <ORG>, the Session Judge had no jurisdiction to try an offence under the aforesaid Act. He had no jurisdiction even to entertain a complaint made before it under the aforesaid Act. Reliance was placed on two decisions of this Court in <CITATION> :  and <CITATION> : JT 2003 (9) SC 89. Counsel for the appellant did not dispute the factual position that the case had not been committed to the Special Judge for trial of respondent No.1 and that the Special Judge entertained the complaint filed before it and issued process against respondent No.1.

In Gangula Ashok and another (supra) a complaint had been lodged against the appellants before the police and after investigation the police filed a charge-sheet before the Special Judge which was designated as <ORG> for trial of offences under the aforesaid Act. The Special Judge proceeded to frame a charge against the appellants which was challenged before <ORG> by them. A learned Judge of <ORG> found that the procedure adopted by the Investigating Officer in filing the charge sheet before the <ORG> was not in accordance with law and the Special Judge had no jurisdiction to take cognizance of any offence under the Act without the case having been committed to that Court. In this view of the matter the learned Judge set aside the proceedings of the <ORG> and directed the charge sheet and the connected papers to be returned to the police officer concerned to present the same before a Judicial Magistrate of the First Class for the purpose of committal to the <ORG>. The judgment of the learned Judge was challenged before this Court and after an exhaustive consideration of the authorities on the subject and the statutory provisions, this Court upheld the order of <ORG> setting aside the proceeding initiated by the <ORG>, though it did not approve of the directions given by <ORG> that after committal of the case, the <ORG> shall frame charge against the appellant. Obviously so, because it is for the <ORG> to decide regarding the action to be taken next after hearing the parties as provided under Section 227 of the Code of Criminal Procedure. Noticing the provisions of Section 193 of the Code of Criminal Procedure and Section 14 of the 1989 Act this Court observed that the Act contemplated only the trial to be conducted by <ORG>. The added reasons for specifying <ORG> as a <ORG> is to ensure speed for such trial. Thus <ORG> is specified to conduct a trial and no other court can conduct the trial of offences under the Act. The legislative intent was to ensure that the offences under the Act were tried by <ORG> and <ORG> was specified as a <ORG> under Section 14 of the 1989 Act. Even after being so specified as a <ORG> <ORG> continues to be essentially <ORG> and its designation as a <ORG> did not denude it of its character or even powers as <ORG>. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code of Criminal Procedure which contains a fasciculus of provisions for trial before <ORG>. This Court then observed :-

"10. Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate", as provided in the Code . Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting those exceptions is indicative of the legislative mandate that <ORG> can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently <ORG> can take cognizance of any offence directly, without the case being committed to it by a Magistrate.

11. Neither in the Code nor in the Act is there any provision whatsoever not even by implication that the specified <ORG> (<ORG>) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a Magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straight away be filed before such <ORG> for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that the <ORG> is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the <ORG> from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the <ORG>."

The same view was reiterated in Vidyadharan (supra). This Court concluded by observing :-

"20. Hence, we have no doubt that a special court under the Act is essentially a court of session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code . In other words, a complaint or a charge-sheet cannot straight away be laid down before the special court under the Act. We are reiterating the view taken by this Court in <CITATION> . :  in above terms with which we are in respectful agreement. The sessions court in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of section 193 of the Code were not met."

In view of the aforesaid decisions of this Court it could not be contended before us that the Special Judge had jurisdiction to entertain the complaint directly and to issue process after taking cognizance without the case being committed to it by a competent Magistrate. The question is no longer res integra and, therefore, it must he held that the learned Special Judge in the instant case erred in entertaining a complaint filed before it and in issuing process after taking cognizance without the case being committed to it for trial by a competent Magistrate. Though <ORG> has quashed the proceeding on a different ground altogether, we are satisfied that the impugned order of the Special Judge deserves to be set aside so far as it related to its taking cognizance of an offence under the 1989 Act, and issuing process on the basis of the complaint directly made before it by the complainant.

The next question which survives consideration is whether the learned Special Judge was justified in taking cognizance under Section 7(1)(d) of the Protection of Civil Rights Act. <ORG> held that the utterance imputed to respondent No.1 did not attract the provisions of Section 7(1)(d) of the Protection of Civil Rights Act. To attract the said provision it had to be shown that the words so uttered had the effect of insulting the appellant on the ground of "untouchability" which is not the case. There was no justification for the submission that the words allegedly uttered by respondent No.1 encouraged his audience to practise untouchability or that respondent No.1 practised untouchability. The appellant was neither insulted nor attempted to be insulted on the ground of untouchability. Therefore, the provisions of Section 7(1)(d) of the Protection of Civil Rights Act were not attracted.

Learned counsel for the appellant did not advance any argument challenging the above finding of <ORG>. We have also seriously considered the matter and we are satisfied that <ORG> was right in coming to the conclusion that Section 7(1)(d) of the Protection of Civil Rights Act is not attracted in the facts and circumstances of this case. Assuming, respondent No.1 uttered the words imputed to him, by no stretch of imagination it can be concluded that by uttering those words he either insulted or attempted to insult the appellant on the ground of untouchability.

In the result this appeal is dismissed. However, it will be open to the appellant, if so advised, to file a complaint before a competent Magistrate who shall consider the complaint on its merit and then proceed in accordance with law. The learned <ORG> as well as <ORG> have made certain observations touching on the merit of the controversy. We make it clear that in case a complaint is filed by the appellant before a competent Magistrate, he shall proceed to consider the matter in accordance with law uninfluenced by any observation made either by the learned Special Judge or by <ORG>. Nothing said in this judgment also shall be construed as expression of opinion on the merit of the case.