PETITIONER: C.I.T. CENTRAL, CALCUTTA Vs. RESPONDENT: NATIONAL TAJ TRADERS DATE OF JUDGMENT27/11/1979 BENCH: <NAME>, V.D. BENCH: <NAME>, V.D. VENKATARAMIAH, E.S. (J) CITATION: 1980 AIR 485 1980 SCR (2) 268 1980 SCC (1) 370 CITATOR INFO : R 1982 SC 149 (256) R 1984 SC 420 (38) R 1984 SC 993 (21) ACT: Income Tax Act , 1922, Section 33B -Construction of section 33B with particular bearing on the scope of the appellate powers of the <ORG> under sub- section 4 thereof and the effect of sub- section 2(b) on sub section (4)- Whether sub section 2(b) of section 33B has the effect of attenuation or curtailing the appellate powers of the <ORG> under sub section 4 . HEADNOTE: In respect of the accounting years ending March 31, 1957 and March 1958 respectively on the voluntary returns submitted by the respondent, <ORG> completed the assessment for these years (1957-58 and 1958-59) on total incomes of Rs. 7000/- and Rs. 7500/- respectively, the same having been made in the status of unregistered firm consisting of three partners, namely <NAME>, <NAME> and <NAME> with equal shares. On August 2, 1962, the Commissioner of Income Tax issued notice to show cause why the said assessments should not be cancelled under section 33B of the Act as he felt that the completed assessments were erroneous as being prejudicial to the interests of the <ORG> and the Income Tax Officer 'E' Ward District II(1) Calcutta had no territorial jurisdiction over the case of the assessee. The notice was served on the assessee on August 3, 1962 and the hearing was fixed by the Commissioner for August 6, 1962. On the ground that none appeared and there was no application for adjournment, the Commissioner passed his order under section 33B ex parte on that date. By his said order the Commissioner cancelled the assessments made by the Income Tax Officer on three grounds (a) that some of the partners were minors and were not competent to enter into any partnership agreement with the result that the status of unregistered firm assigned to the assessee by the Income Tax Officer was clearly wrong and as such the assessments deserved to be cancelled; (b) that the books of accounts were unreliable and they were not properly examined by the Income Tax Officer with the result that the assessments made were prejudicial to the interests of the revenue and (c) that the Income Tax Officer has no territorial jurisdiction over the case which fell in the jurisdiction of Income Tax Officer, District III Calcutta and directed the Income Tax Officer having proper jurisdiction to make fresh assessments after examining the records of the assessee in accordance with law. The appeals preferred to the Appellate <ORG> under section 33B(3) were accepted. Finding that the Commissioner's order passed at 11.30 A.M. ex parte was bad in as much as the notice served upon the assessee permitted filing of objections at any time during the course of August 6, 1962 and the objections were in fact filed later in the day, the <ORG> remanded the case with the direction to dispose it of afresh after giving due opportunity to the respondent assessee. On a reference to <ORG> at the instance of the appellant, <ORG> held: (a) the assumption of jurisdiction by the Commissioner under section 33B of the Income Tax Act was valid in law; (b) the <ORG> acted properly in vacating or cancelling the Commissioner's order, but, (c) the <ORG> did not act properly in directing the Commissioner to act under section 33B(1) because the period of limitation of two years prescribed under section 33(2)(b) for him to act under section 33B(1) had expired. In doing so, <ORG> held that the provision of sub section 2(b) was absolute and covered even a revisional order of the Commissioner passed in pursuance of a direction given by any appellate authority. Allowing the appeal by <ORG>, the <ORG> ^ HELD: 1. Under sub section (1) of section 33B of the Income Tax Act, power has been conferred upon the Commissioner to revise Income-Tax Officer's orders but the exercise of such power is regulated by the two conditions mentioned therein namely, (a) he must consider the order sought to be revised to be erroneous as being prejudicial to the interests of the revenue and (b) he must give an opportunity to the assessee of being heard before revising it. Sub-s. (2)(b) prescribes a period of limitation in negative words by providing that "no order shall be made under sub-s(1) after the expiry of two years from the date of the order sought to be revised". Sub-s.(3) confers on the assessee a right to prefer an appeal to the Appellate. <ORG> against the Commissioners' order made under sub- s.(1) while sub-s. (4) indicates the power of the Appellate <ORG> in dealing with such appeal by providing that "such appeal shall be dealt with in the same manner as if it were an appeal under sub-s.(1) of s. 33 ". Two things stand out clearly on a fair reading of the two concerned provisions, namely, sub-s.(2)(b) and sub-s.(4). The bar of limitation contained in sub-s. (2)(b) is on the Commissioner's power to pass revisional orders under sub-s. (1) and the same appears to be absolute in the sense that it applies to every order to be made under sub-s.(1). At the same time sub-s.(4) confers on the Appellate <ORG> very wide powers which it has while dealing with an appeal under s. 33(1) . In other words, the Appellate <ORG> has power "to pass such orders thereon (i.e. on the appeal) as thinks fit." The word "thereon" restricts the jurisdiction of the Appellate <ORG> to the subject-matter of the appeal which merely means that the <ORG> cannot adjudicate or give a finding on a question which is not in dispute and which does not form the subject-matter of the appeal but the words "pass such orders thereon as it thinks fit" include all the powers (except possibly the power of enhancement) which are conferred on the Assistant Appellate Commissioner by s. 31 and consequently the <ORG> has authority in exercise of its appellate powers to set aside the order appealed against and direct fresh assessment in the light of the observations made by it in its judgment. In other words, similar power is possessed by the Appellate <ORG> while dealing with the appeal under sub-s.(4) of s. 33B . [275 A-H, 276 A] <ORG> case, 63 I.T.R. 232; applied. 2. Two principles of construction are relating to casus omissus and the other in regard to reading the statute as a whole are well settled. Under the first principle, a casus omissus cannot be supplied by the <ORG> except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and 270 for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the <ORG>. [277 B, 278 A-B] Artemiou v. <NAME>,  1 Q.B., 878, <NAME> v. Inland <ORG> Commissioner  A.C. 557 and 577 Quoted with approval. 3. The object of introducing Section 33B with effect from March 30, 1948 was to confer revisional powers upon the Commissioner to correct the erroneous orders of an Income Tax Officer in so far as they were prejudicial to the interests of the revenue. The language of the sub-sec.(1) clearly suggests that the said power was contemplated to be exercised suo motu by the Commissioner inasmuch as the opening words show that it was upto the Commissioner to call for and examine the record of any proceedings under the Act and on examination of the record if he were satisfied that any order passed by an Income Tax Officer was erroneous as being prejudicial to the interests of the revenue he could revise the same after giving an opportunity to the assessee of being heard. It is true that sub-s.(2)(b) thereof prescribed a period of limitation on his power by providing that no order shall be made under sub-s.(1) after the expiry of the two years from the date of the order sought to be revised by the Commissioner and a literal construction of sub-s.(2)(b) also suggests that the bar of limitation imposed thereby was absolute in the sense that it applied to every kind of order to be made under sub-s.(1) and no distinction was made between a suo motu order and an order that might be made by him pursuant to a direction given by any appellate or other higher authority. Sub-s.(3) conferred on an assessee a right to prefer an appeal to the appellate <ORG> against the Commissioner's order made under sub section (1) and under sub-s.(4) the <ORG> had authority to deal with the impugned order of the Commissioner in such manner as it deemed fit in exercise of its appellate powers; for instance, it could confirm the impugned order, it could annul that order, or it could after vacating it remand the case back to the Commissioner for making a fresh assessment in the light of the observations made by it in its judgment or it could after calling for a remand report, rectify the erroneous order of the Income Tax Officer. Further there was no period prescribed within which an appeal against the impugned order of the Commissioner had to be disposed of by the <ORG> and in the normal course on rare occasions such appeals would have been heard and disposed of before the expiry of two years from the date of the Income Tax Officer's order which was regard as erroneous by the Commissioner. More often than not such appeals would come up for hearing after the expiry of the said period of two years-a fact fully known and within the contemplation of the <ORG> when it introduced the section in the Act in 1948. [278 E-H, 279 A-D] 4. The <ORG> did not intend to attenuate or curtail the appellate powers which it conferred on the appellate <ORG> in very wide terms under sub-s.(4) by enacting sub section 2(b) prescribing a time limit on the Commissioner's power to reverse an erroneous order of the Income Tax Officer when the Commissioner was seeking the exercise the same not suo motu but in pursuance of or obedience to a direction from the appellate authority. Any contrary and literal construction would lead to manifestly absurd result, because in a given 271 case, like the present one where the appellate authority (<ORG>) has found (a) the Income Tax Officer's order to be clearly erroneous as being prejudicial to the interests of the revenue and (b) the Commissioner's order unsustainable as being in violation of principles of natural justice; it would be difficult for the appellate authority to exercise its powers. Obviously it could not withhold its hands and refuse to interfere with Commissioner's order altogether, for, that would amount to perpetuating the Commissioner's erroneous order, nor could it merely cancel or set aside the Commissioner's wrong order without doing anything about the Income Tax Officer's order, for that, would result in perpetuating the Income Tax Officer's order which had been found to be manifestly erroneous as being prejudicial to the revenue. Moreover, in exercise of its appellate powers it was open to the <ORG> itself to call for a remand report from either the Commissioner or the Income Tax Officer and rectify the Income Tax Officer's erroneous order after giving opportunity to the assessee and in doing so no question of limitation would arise. It was equally open to the <ORG> to set aside the Commissioner's order and remand the case directly to the Income Tax Officer giving requisite direction to rectify his erroneous order and thereupon the Income Tax Officer would carry out the <ORG>'s direction for, admittedly, the bar of limitation under sub-s.(2)(b) was only on the Commissioner's power to make an assessment afresh and not on the Income Tax Officer. If this be the correct position then it is gravely anomalous that the <ORG> should not be in a position to set aside the Commissioner's order and remand the case back to the Commissioner for making a fresh assessment because in the meantime two years' period of limitation has expired, for, it would mean that the <ORG> was prevented from achieving the desired effect directly through the Commissioner but it could do so indirectly through the Income Tax Officer. A literal construction placed on sub-s.(2) (b) would lead to such manifestly absurd and anomalous results, which, were not intended by the <ORG>. Therefore, the words of sub- section 2(b) should be construed as being applicable to suo motu orders of the Commissioner in revision and not to orders made by him pursuant to a direction or order passed by the Appellate <ORG> under sub-s.(4) or by any other higher authority. Such construction will be in consonance with the principle that all parts of the section should be construed together and every clause thereof should be construed with reference to the context and other clauses thereof so that the construction put on that particular provision makes a consistent enactment of the whole statute. [279 D-H, 280 A-G] Commissioner of Income Tax v. <NAME> <NAME>, 39, I.T.R. 522 (Bombay); approved. It is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could s. 33B be regarded as charging provision. [281 C-D] 6. A casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both ss. 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948 and that in the case of former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and secondly it would be improper to do so without compar- 272 ing the various stages of amendments through which each set of these Provisions had undergone since inception. The further aspect the <ORG> has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation, in section 263(3) , is, not of much importance. Irrespective of the question whether the second proviso to section 34(3) was enacted ex majore cautella or not (over which conflicting views obtain) it is clear that s. 263(3) of the 1961 Act must be regarded as an ex majore cautella provision. Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and there was no decision to the contrary of any other High <ORG>. Obviously, therefore, the enactment of s. 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income Tax Bill 1961 where it has been stated that sub-cl. (3) of s. 263 was new and had been added to get over the difficulty experienced in (wrongly stated 'caused by') the Bombay High <ORG>'s decision in <NAME>'s case. The enactment of an ex majore cautella provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act. [281 E-H, 282 <CITATION> , 77 I.T.R. 934 over ruled. <ORG> case, 96 I.T.R. 390; relied on. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 171-172 of 1973.

From the Judgment and Order dated 9-3-1972 of <ORG> in I.T Reference No. 117/67.

<NAME>, <NAME> and Miss <NAME> for the Appellant.

<NAME> (Amicus Curiae) for the Respondent. The Judgment of the Court was delivered by.

TULZAPURKAR, J.-These two appeals by certificate raise an important question as regards the proper construction of s. 33B of the Indian Income Tax Act, 1922 with particular bearing on the scope of sub-s. (4) thereof and the effect of sub-s. (2) (b) on the sub-s. (4).

The facts giving rise to the aforesaid question may briefly be stated: The assessment years involved are 1957-58 and 1958-59 corresponding to the accounting years ending March 31, 1957 and March 31, 1958 respectively. On or about August 5, 1960 the respondent-assessee submitted voluntary returns, inter alia, for the said two assessment years alongwith a declaration dated August 8, 1960. The assessment for these years were completed on August 12, 1960 by the Income-Tax Officer, <NAME>, District II(1) Calcutta on total incomes of Rs. 7,000/- and 7,500/- respectively, the same having been made in the status of unregistered firm consisting of three partners, namely, <NAME>, <NAME> and <NAME> with equal shares.

On August 2, 1962, the Commissioner of Income-Tax issued a notice to show cause why the said assessments should not be cancelled under s. 33B of the Act as he felt that the completed assessments were erroneous as being prejudicial to the interests of the revenue and that the Income-Tax Officer, <NAME>, District II(1) Calcutta had no territorial jurisdiction over the case of the assessee. The notice was served on the assessee on August 3, 1962 and the hearing was fixed by the Commissioner for August 6, 1962. On the ground that none appeared and that there was no application for adjournment, the Commissioner passed his order under s. 33B ex parte on that date. By his said order the Commissioner cancelled the assessments made by the Income-Tax Officer on August 12, 1960 on three grounds: (a) that some of the partners were minors and were not competent to enter into any partnership agreement with the result that the status of unregistered firm assigned to the assesse by the Income-Tax Officer was clearly wrong and as such the assessments deserved to be cancelled, (b) that the books of account were unreliable and they were not properly examined by the Income-Tax Officer with the result that the assessments made were prejudicial to the interests of the revenue and (c) that the Income-Tax Officer concerned had no territorial jurisdiction over the case which fell within the jurisdiction of Income-Tax Officer, District III(II) Calcutta, and directed the I.T.O. having proper jurisdiction to make fresh assessments after examining the record of the assesse in accordance with law.

In the appeals preferred to <ORG> under s. 33B(3) the respondent-assessee challenged the said order of the Commissioner on various grounds. The <ORG>, negativing all other contentions of the respondent-assessee, came to the conclusion that on merits the facts justified the assumption of jurisdiction under s. 33B by the Commissioner but held that the Commissioner had not conformed to the requirements of natural justice by putting to the respondent assessee what case it had to meet and by giving due opportunity for explaining the same. The <ORG> noted that the Commissioner had disposed of the matter at 11.30 A.M. when none appeared on behalf of the respondent- assessee while the notice served upon the latter permitted filing of objections at any time during the course of August 6, 1962 and objections had been filed by the respondent- assessee later in the day. The <ORG>, therefore, allowed the appeals, vacated the Commissioner's order dated August 6, 1962 and remanded the case to him with the direction to dispose it of afresh after giving due opportunity to the respondent-assessee.

Feeling aggrieved by the <ORG>'s aforesaid order dated July 5, 1965 the appellant sought to refer a set of six questions of law said to arise out of the said order to <ORG> but the <ORG> referred the following two questions only for the opinion of <ORG>:

"1. Whether on the facts and in the circumstances of the case, the <ORG> was right in holding that the assumption of jurisdiction by the Commissioner under s. 33B of the Income-Tax Act was valid in law?

2. Whether, on the facts and in the circumstances of the case, the <ORG> acted properly by vacating the order of the Commissioner under s. 33B of the said Act and in directing him to dispose of the proceedings under the said section afresh after giving due opportunity to the assessee?" <ORG> disposed of the Reference (I.T.

Reference No. 117 of 1967) by its judgment dated March 9, 1972 whereby it answered the first question in the affirmative against the assessee, that is to say, on merits it held that the assessments made by the Income-Tax Officer required revision at the hands by the Commissioner. As regards the second question <ORG> was of the view that it comprised two aspects, one relating to the vacating of the Commissioner's order and the other relating to the giving of a direction to him to dispose of the case under s. 33B afresh after giving due opportunity to the assessee and <ORG> held that in exercise of its appellate powers the <ORG> acted properly in vacating or cancelling the Commissioner's order but did not act properly in directing him to dispose of the case afresh under s. 33B(1) because the period of limitation of two years prescribed under s. 33(2)(b) for him to act under s. 33B(1) had expired and answered the question accordingly (i.e. in the affirmative on the first aspect and in the negative on the second aspect). In doing so <ORG> held that the provision of sub-s. 2(b) was absolute and covered even a revisional order of the Commissioner passed in pursuance of a direction given by any appellate authority and relied in that behalf on the aspect that, unlike 2nd proviso to sec. 34(3), there was no provision removing or relaxing the bar of limitation on the power of the Commissioner under s. 33B(2) (b) . <ORG> preferred the view of <ORG> in <CITATION> (1) to the view of <ORG> in <CITATION> (2). The <ORG> has come up in appeal to this Court challenging the aforesaid view of <ORG>.

Since the question relates to the proper construction of s. 33B of the Act with particular bearing on the scope of the appellate powers of the <ORG> under sub-s. (4) thereof and the effect of sub-s. (2) (b) thereon, it will be desirable to note the material provisions of s. 33B . Under sub-s. (1) power has been conferred upon the Commissioner to revise Income-Tax Officer's orders but the exercise of such power is regulated by the two conditions mentioned therein, namely, (a) he must consider the order sought to be revised to be erroneous as being prejudicial to the interests of the revenue and (b) he must give an opportunity to the assessee of being heard before revising it. Sub-s. (2) (b) prescribes a period of limitation in negative words by providing that "no order shall be made under sub-s. (1) after the expiry of two years from the date of the order sought to be revised." Sub-s. (3) confers on the assessee a right to prefer an appeal to the Appellate <ORG> against the Commissioner's order made under sub-s. (1) while sub-s. (4) indicates the powers of the Appellate <ORG> in dealing with such appeal by providing that "such appeal shall be dealt with in the same manner as if it were an appeal under sub-s. (1) of s. 33 ". Two things stand out clearly or a fair reading of the two concerned provisions, namely, sub-s. (2) (b) and sub-s. (4). The bar of limitation contained in sub-s (2) (b) is on the Commissioner's power to pass revisional orders under sub-s. (1) and the same appears to be absolute in the sense that it applies to every order to be made under sub-s. (1). At the same time sub-s. (4) confers on the Appellate <ORG> very wide powers which it has while dealing with an appeal under s. 33(1) . In other words, the Appellate <ORG> has power "to pass such orders thereon (i.e. on the appeal) as it thinks fit". In Hukumchand Mills(3), case this Court has explained that the word "thereon" restricts the jurisdiction of the Appellate <ORG> to the subject-matter of the appeal which merely means that the <ORG> cannot adjudicate or give a finding on a question which is not in dispute and which does not form the subject-matter of the appeal but the words "pass such orders thereon as it thinks fit" include all the powers (except possibly the power of enhancement) which are conferred on the Assistant Appellate Commissioner by s. 31 and consequently the <ORG> has authority in exercise of its appellate powers to set aside the order appealed against and direct fresh assessment in the light of the observations made by it in its judgment. In other words, similar power is possessed by the Appellate <ORG> while dealing with the appeal under sub- s. (4) of s. 33B . The question that arises for our consideration is whether such a direction to dispose of the case afresh can be given to the Commissioner by the Appellate <ORG> when the period of limitation prescribed under sub-s. (2) (b) has expired ? In other words, whether sub-s. (2) (b) of s. 33B has the effect of attenuating or curtailing the appellate powers of the <ORG> under sub-s. (4) ?

Counsel for the <ORG> contended that it was a well settled principle that all the parts of a section or statute should be construed together and that every clause of a section should be construed with reference to the context and other clauses thereof, so that the construction put on a particular provision makes a consistent enactment of the whole statute. He further urged that the object of conferring revisional power upon the Commissioner under s. 33B(1) obviously was to correct erroneous orders of Income- Tax Officer in so far as they were prejudicial to the interests of the revenue and such object would be defeated if the bar of limitation contained in sub-s. (2)(b) is held applicable to revisional orders passed by the Commissioner in pursuance of or in obedience to a direction given or order made by <ORG> in appeal under s. 33B(4) or for that matter by <ORG> or <ORG> in case the matter is carried to those Courts. According to him it would be proper to construe the provision in sub-s. 2(b) as being applicable to suo motu revisional orders passed by the Commissioner under sub-s. (1) and not to orders passed by him in pursuance of a direction issued to him by the <ORG> in appeal. He urged that there was no reason why sub-s. (2) (b) should be regarded as having the effect of attenuating or curtailing the very wide appellate powers conferred upon the <ORG>. He further urged that no argument could be based on the absence of a provision, similar to the 2nd proviso to s. 34(3) , in s. 33B of the Act the support of his contention strong reliance was placed by him upon <ORG> decision in <NAME>'s case (supra).

On the other hand, counsel for the assessee canvassed <ORG> view for our acceptance by pointing out that both ss. 33B and 34(3) together with the second proviso were introduced in the Act by the same Amending Act 1948 but in s. 33B no provision for removing or relaxing the bar of limitation contained in sub-s. (2)(b) was made and hence it was not for the <ORG> to supply a casus omissus. He also relied on the fact that in the 1961 Act the necessary provision has been enacted in s. 263(3) which also showed that in the absence of such provision in s. 33B of the 1922 Act the bar of sub-s. (2) (b) was applicable to every order of the Commissioner irrespective of whether it was made suo motu or in pursuance of a direction issued by the appellate authority. According to him since the bar of limitation contained in sub-s. (2) (b) of s. 33B always operated for the benefit of the assessee as the same accorded finality to the assessment orders, the appellate powers of the <ORG> under sub-s. (4) must be regarded as having been curtailed to the extent that the <ORG> cannot remand the case to the Commissioner for making fresh assessment if by then the limitation has expired.

Two principles of construction-one relating to casus omissus and the other in regard to reading the statute as a whole-appear to be well settled. In regard to the former the following statement of law appears in Maxwell on Interpretation of Statutes (12th Edn.) at page 33:

Omissions not to be inferred-"It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord <NAME> said: 'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.' 'We are not entitled,' said Lords <NAME>, 'to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.' A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission in consequence to have been unintentional."

In regard to the latter principle the following statement of law appears in <NAME> at page 47:

A statute is to be read as a whole-"It was resolved in the case of <ORG> [(1595) 3 Co. Rep. 58b, at p. 59b] that the good expositor of an Act of Parliament should 'make construction on all the parts together, and not of one part only by itself.' Every clause of a statute is to 'be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute.' (Per Lord <NAME> in <ORG> v. R : 1898 AC 735)".

In other words, under the first principle a casus omissus cannot be supplied by the <ORG> except in the case of clear necessity and when reason for it found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the <ORG>. "An intention to produce an unreasonable result", said <ORG> in <NAME> v. <NAME>) "is not to be imputed to a statute if there is some other construction available." Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction, (Per <NAME> in Luke v. I.R.C.-1968 AC 557 where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges. In the light of these principles we will have to construe sub-s. (2) (b) with reference to the context and other clauses of s. 33B.

Section 33B was introduced in the Indian Income-Tax Act , 1922 by the Income Tax and Business Profit Tax (Amendment) Act, 1948 with effect from March 30, 1948 and the object of introducing the same was obviously to confer revisional powers upon the Commissioner to correct the erroneous orders of an Income Tax Officer in so far as they were prejudicial to the interests of the revenue. The language of the sub-sec. (1) clearly suggests that the said power was contemplated to be exercised suo motu by the Commissioner inasmuch as the opening words show that it was upto the Commissioner to call for and examine the record of any proceedings under the Act and on examination of the record if he were satisfied that any order passed by an Income Tax Officer was erroneous as being prejudicial to the interests of the revenue he could revise the same after giving an opportunity to the assessee of being heard. It is true that sub-s. (2) (b) thereof prescribed a period of limitation on his power by providing that no order shall be made under sub-s. (1) after the expiry of two years from the date of the order sought to be revised by the Commissioner and a literal construction of sub-s. (2) (b) also suggests that the bar of limitation imposed thereby was absolute in the sense that it applied to every kind of order to be made under sub-s. (1) and no distinction was made between a suo motu order and an order that might be made by him pursuant to a direction given by any appellate or other higher authority but the question is whether such a literal construction should be accorded to that provision ? As stated earlier sub-s. (3) conferred on an assessee a right to prefer an appeal to <ORG> against the Commissioner's order made under sub-s. (1) and under sub-s. (4) the <ORG> had authority to deal with the impugned order of the Commissioner in such manner as it deemed fit in exercise of its appellate powers; for instance, it could confirm the impugned order, it could annul that order, it could after vacating it remand the case back to the Commissioner for making a fresh assessment in the light of the observations made by it in its judgment or it could, after calling for a remand report, rectify the erroneous order of the Income Tax Officer. Further there was no period prescribed within which an appeal against the impugned order of The Commissioner had to be disposed of by the <ORG> and in the normal course on rare occasions such appeals would have been heard and disposed of before the expiry of two years from the date of the Income Tax Officer's order which was regarded as erroneous by the Commissioner. More often than not such appeals would come up for hearing after the expiry of the said period of two years-a fact fully known and within the contemplation of the <ORG> when it introduced the section in the Act in 1948. In these circumstances did the <ORG> intend to attenuate or curtail the appellate powers which it conferred on <ORG> in very wide terms under sub-s. (4) by enacting sub-s. (2) (b) prescribing a time limit on the Commissioner's power to revise an erroneous order of the Income Tax Officer when the Commissioner-was seeking to exercise the same not suo motu but in pursuance of or obedience to a direction from the Appellate authority ? According to the construction contended for by the assesses and which found favour with <ORG> the answer was in the affirmative because sub-s. (2) (b), on its literal construction, was absolute. In our view such literal construction would lead to a manifest y absurd result, because in a given case, like the present one, where the appellate authority (<ORG>) has found (a) the Income Tax Officer's order to be clearly erroneous as being prejudicial to the interests of the revenue and (b) the Commissioner's order unsustainable as being in violation of principles of natural justice how should the appellate authority exercise its appellate powers ? obviously it could not withhold its hands and refuse to interfere with Commissioner's order altogether for, that would amount to perpetuating the Commissioner's erroneous order, nor could it merely cancel or set aside the Commissioner's wrong order without doing anything about the Income Tax Officer's order, for. that would result in perpetuating the Income Tax Officer's order which had been found to be manifestly erroneous as being prejudicial to the revenue. But such result would flow from the view taken by <ORG> which has held that the <ORG> acted properly in vacating the Commissioner's order but did not act properly in directing him to dispose of the proceedings afresh after giving opportunity to the assesses. Such manifestly absurd result could never have been intended by the <ORG>. Moreover, it was fairly conceded by the counsel for the assesses before us that in exercise of its appellate powers it was open to the <ORG> itself to call for a remand report from either the Commissioner or the Income Tax Officer and rectify the Income Tax Officer's erroneous order after giving opportunity to the assesses and in doing so no question of limitation would arise. It was also not disputed by him that it was equally open to the <ORG> to set aside the Commissioner's order and remand the case directly to the Income Tax Officer giving the requisite direction to rectify his erroneous order and thereupon the Income Tax Officer could carry out the <ORG>'s direction. for, admittedly, the bar of limitation under 1) sub-s. (2) (b) was only on the Commissioner's paver to make an assessment afresh and not on the Income Tax Officer. If this be the correct position then it is gravely anomalous that the <ORG> should not be in a position to set aside the Commissioner's order and remand the case back to the Commissioner for making a fresh assessment because in the meantime two years' period of limitation has expired, for, it would mean that the <ORG> was prevented from achieving the desired effect directly through the Commissioner but it could do so indirectly through the Income Tax Officer. A literal construction placed on subs. (2) (b) would lead to such manifestly absurd and anomalous results, which, we do not think, were intended by the <ORG>. These considerations compel us to construe the words of sub-s.. (2)(b) as being applicable to suo motu orders of the Commissioner in revision and not to orders made by him pursuant to a direction or order passed by <ORG> under sub-s. (4) or by any other higher authority. Such construction will be in consonance with the principle that all parts of the section should be construed together and every clause thereof should be construed with reference to the context and other clauses thereof so that the construction put on that particular provision makes a consistent enactment of the whole statute.

Having regard to the above discussion we are clearly of opinion that the view taken by <ORG> in <NAME>'s case (supra) on the construction of sub-s. (2) (b) of s. 33B is correct and we approve of it. In <NAME> case (supra) <ORG> took a contrary view and held that under s. 33B(4) of the Act the <ORG> would not be justified in remanding the case to the Commissioner after the two years had expired from the date of the order sought to be revised. The decision seems to rest on three aspects: (a) it being fiscal statute the same must be strictly construed, (b) the bar of limitation contained in sub-s. (2)(b) was absolute and unqualified and covered all types of orders and (c) that unlike the second proviso to s. 34(3) there was no provision for removing or relaxing the bar of limitation on the power of the Commissioner under s. 33B (2) (b) and that since s. 33B as well as s. 34(3) with second proviso had been introduced in the Act by the same Amending Act of 1948 there was a deliberate omission to make a provision removing of relaxing the 'oar of limitation in s. 33B and for such an omission the remedy lay with the <ORG> and not with the <ORG>. The Assam High <ORG> also alluded to the fact that under the 1961 Act the <ORG> had made a provision removing or relaxing the bar of limitation in s. 263(3) . As regards aspect (b) we have already dealt with it above. As regards aspect (a) it is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could s. 33B be regarded as a charging provision. As regards aspect (c) we have already pointed out above that a casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both ss. 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948 and that in the case of former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and secondly it would be improper to do so without comparing the various stages of amendments through which each set of these provisions had undergone since inception. The further aspect that the <ORG> has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in s. 263(3) , is, in our view, not of much consequence. Irrespective of the question whether the second proviso to s. 34(3) was enacted ex majore cautella or not (over which conflicting views obtain), it is clear to us that s. 263(3) of the 1961 Act must be regarded as an ex majore cautella provision. Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and, there was no decision to the contrary of any other High <ORG>. Obviously, therefore, the enactment of s. 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income Tax Bill 1961 where it has been stated that sub-cl. (3) of s. 263 was new and had been 19 added to get over the difficulty experienced in (wrongly state 'caused by') <ORG>'s; decision in <NAME>'s case (supra) . The enactment of an ex majore cautella provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act. In our view, therefore. the Assam case was wrongly decided.

Reference may now be made to a decision of this <ORG> in <ORG> case, where in a similar situation arising under s. 132 of the Income Tax Act, 1961, a restricted construction was accorded by this <ORG> to sub-s. (5) thereof which prescribed certain period of limitation. In that case pursuant to an authorisation issued under s. 132(1) of the 1961 Act searches were carried out on October 15 and 16, 1971 at the residence and business premises of <ORG>, an individual, and at certain office premises of the firms in which he was a partner, and jewellery, cash and account books were seized. There was also a search of two banks and a restraint order was made under s. 132(3) in respect of l 14 silver bars pledged with those banks on the ground that they were the property of <ORG>. On January 12, 1972, the Income Tax Officer passed a summary order under s. 132(5) on the basis that all the assets seized and 114 silver bars belonged to <ORG>. Thereupon, <ORG>, one of the firms in which <ORG> was a partner, and <ORG> filed a writ petition in the High <ORG> challenging the order dated January 12, 1972 and on April 6, 1977, on the basis of the consent of the parties, the High <ORG> quashed the order and permitted the department to make a fresh enquiry after giving an opportunity to the petitioner and pass a fresh order within two months. After a fresh enquiry the Income Tax Officer passed an order on June S, 1972. holding that the silver bars belonged to <ORG>, the individual, and not the firm, <ORG> and Sons. Thereupon, the firm and <ORG> again filed a writ petition challenging the second order. The High <ORG> held that the Income Tax Officer had no jurisdiction to pass that order beyond the period prescribed in s. 132(5) and set aside the order and directed the return of the 114 bars of silver. This <ORG> held, inter alia, that the order made in pursuance of a direction given - ' under s. 132(12) or by a <ORG> in writ proceedings, was not subject to the limitation prescribed under s. 132(5) . At page 394 this <ORG> has observed thus:

"Even if the period of time fixed under section 132(5) is held to be mandatory that was satisfied when the first order was made. Thereafter, if any direction is given under section 132(2) or by a <ORG> in writ proceedings, as in this case, we do not think an order made in pursuance of such a direction would be subject to the limitations prescribed under A section 132 (5) . Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under section 132(11) within thirty days and that authority can direct the Income Tax Officer to pass a fresh order. We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed within ninety days. It would make the sub- sections (11) and (12) of section 132 ridiculous and useless."

It may be pointed out that in s. 132 there is no provision removing or relaxing the bar of limitation contained in s. 132(5) enabling the Income Tax Officer to pass an order afresh pursuant to any direction issued to him by a higher authority under s. 132(12) and even the this Court took the view that the limitation prescribed under s. 132(5) will be applicable only to the initial order to be made by the Income Tax Officer and not to an order that would be made by him pursuant to a direction from the <ORG> or notified authority. The concerned provisions were read together and such construction was put on sub-s. (5) of s. 132 as made a consistent enactment of the whole statute.

In the result, we are of opinion that the answer given by <ORG> to the second aspect of the second question referred to it was clearly wrong and, in our view, the <ORG>'s order vacating the Commissioner's order and directing the Commissioner to make assessment afresh after giving due opportunity to the respondent-assessee was proper. The appeal is accordingly allowed but in the circumstances, there will be no order as to costs. V.D.K. Appeal allowed.


JUDGMENT <NAME>, J.

1. The respondent, an Architectural Draftsman in the services of <ORG>, <ORG> under the State of West Bengal, boarded double decker bus No. WBS 920 of route No. 10 belonging to the appellant <ORG>, which plies from Ballvgunge to Howrah, on May 11, 1966. After boarding the said bus he occupied a seat just over the rear left wheels on the lower deck. The inner tyre of the said rear left wheel had a burst, as a result whereof he received bleeding injuries with comminuted fracture over both the bones of his left leg.

2. On the happening of the said accident, due to the bursting of the tyre, he on July 7, 1966 filed an application for compensation under Section 110 of the Motor Vehicles Act. 1939, in <ORG> Additional District Judge, Alipore, 24-Parganas, who incidentally is <ORG> for Calcutta and 24-Parganas. The said application was registered as M.A.C. Case No. 36 of 1966.

3. In his application, the respondent alleged that at the relevant time he was drawing a salary of Rs. 451 per month which was inclusive of all allowances. He alleged that his normal place of residence is at Uttarpara and at the relevant time he was attending his office at New Secretariat Buildings, Calcutta-1 as a daily passenger by train and by bus. He has further alleged that on the material date he left office early in the afternoon for the purpose of attending to some private business at Koreya. He has stated that after finishing the said business, he boarded the bus in question for the purpose of going back to his residence at Uttarpara via Howrah. He has alleged that the said bus safely reached in front Of <ORG>. Opposite <ORG> at about 5-30 P. M. and all the time, ever since he boarded the said bus, he was sitting on the left hand side Ladies' seat which incidentally is just on the rear left side wheels of the bus. He has alleged that the said bus was overloaded and the passengers had duly alighted and boarded at the said <ORG> stoppage and after it had just started and had proceeded some distance, the left side rear inner tyre of the same had burst, as a result whereof he received serious bleeding and fracture injuries on his left leg and was removed to the <ORG>, Emergency Block.

4. He has further alleged that he received 3 days treatment at the said Hospital and thereafter his relatives obtained his discharge from the said Hospital and had his treatment continued for some time at his residence. Thereafter, he was again admitted to <ORG> and remained confined for about 2 months. In his application it has been alleged by the respondent that on subsequent partial recovery, he had to attend his office by hiring Taxi from Bally Bridge for about 3 or 4 months but soon thereafter he had to take rest at Ms home for occasional flare-ups. He has alleged that such flare-ups still continue and he, as a result of such accident, has acquired a permanent limp in his left leg. The respondent has further alleged that because of the said accident he has practically lost his zest and pleasure of life and that sometimes he intends to commit suicide for his continued ill health. He has also alleged that he has spent a sum of about Rs. 3,000 out of his own resources towards his treatment and thereafter his relations came to his aid during the subsequent period of treatment and in fact the expenses for special diet which was continued for some time, had to be borne out from charities by the said relations. Taking into consideration the total impact and the loss, the respondent in his application had claimed a sum of Rupees 75,000 by way of compensation against the appellant herein.

5. <ORG> viz., the appellant herein contested the said application and in their written objection they contended inter alia amongst others that the accident in question was an act of God or Vis major. They contended that the accident could not be foreseen and that the driver of the bus had no control over the same. They further alleged that the compensation as claimed was excessive and arbitrary. They however did not dispute the fact of bursting of the tyre.

6. On the pleadings as aforesaid, the parties to the proceeding went in trial on the following issues:--

(1) Can <ORG> repudiate its liability on the ground that the accident was an act of God or Vis major?

(2) is the petitioner entitled to claim any compensation? If so, for what amount?

7. On the question of repudiation of the liability by <ORG> as mentioned in issue No. 1 above, the learned <ORG>, on consideration of the oral evidence of the respondent himself, who deposed as P.W. 3 and one Sri <NAME>, O.P.W. 1, who is the tyre examiner of <ORG>, <ORG>, and other documentary evidence, came to the conclusion that the accident in question had happened due to lack of proper maintenance of the bus and as such the said issue was decided in favour of the respondent. On the next question about the petitioner's right to claim compensation, after considering the evidence of P.W. 1, Dr. <NAME>, Orthopaedic Surgeon, Associate Professor and Head of <ORG>, <ORG>. P.W. 7, Dr. <NAME>, Assistant Professor of Orthopaedic Surgery. <ORG>, Calcutta, and that of P.W. 3, the learned <ORG> found that the petitioner was entitled to get a compensation of Rs. 13,739.85 P. from <ORG> and he awarded accordingly. From the determination, the break-ups of the said amount of compensation appears to be a sum of Rs. 7,000 on account of medical expenses and diet, Rs. 1,000 on account of transport charges, Rs. 739.85 P. on account of loss of salaries and Rs. 5,000 on account of future pain and sufferings.

8. From the said determination, <ORG> presented this Miscellaneous Appeal on February 10. 1969 and at the time of the hearing of the same Mr. <NAME>, the learned Advocate appearing for the appellant, in his usual fairness, contended that he will not dispute the award of Rs. 3,000 which was made by the <ORG> on account of medical expenses incurred by the respondent. But he made it clear that he would contest the award in so far as the same relates to an amount of Rs. 4,000, which the respondent has alleged to have received in the shape of charities from his relatives and he would also submit that <ORG>, in the instant case has no liability to pay any amount to the respondent on account of compensation, as there was no laches on their part and the more so when <ORG> in the instant case has taken due and proper care in maintaining and running the services including the Bus in question and also because there is no evidence of actual repayment of the said sum by the respondent or any demand for the same from him by the donors.

9. On the question of the amount of care which was required to be taken by <ORG> in the instant case, for the purpose of finding out its liability in the matter of compensation and the tests required, Mr. <NAME> first relied on the case of <NAME> v. <ORG> (C. A.) reported in (1969) 2 QBD 188 = 1969 (1) All ER 401, and more particularly to the determination by <ORG> viz., where an accident results from a latent defect the burden of proof is on the defendants to show that it occurred without fault on their part and that such defect could not be discovered by reasonable care. Standard practice is not conclusive in a type of case in which risks of great magnitude may result. In such a case it is essential for the <ORG> not to be pound by the views of experts as to practice or as to what risks may be disregarded; the <ORG> should form its own opinion on the facts. It is for the <ORG> to decide whether the owner of the offending vehicle had taken all reasonable precautions for the safety of the public.

10. It appears that from the above determination by <ORG>, a further appeal was taken to <ORG> in the case of <NAME> v. <ORG> reported in 1969 (3) All ER 756 = ((1969) 3 WLR 732). wherein it has been held that the respondent viz., the owners could not rely on the defence of a latent defect not discoverable by the exercise of reasonable care unless they showed that they had taken all reasonable care in the circumstances of the case and to do so they are required to show that there were no special circumstances in the past use of the vehicle to indicate that the vehicle might have been subjected to a corrosive agent resulting in the corrosion of the pipe. As the respondents had not adduced evidence of the past history of the vehicle, they could not rely on the defence of a latent defect and as such they had not discharged the inference that they had been negligent. Thus the views which were taken by <ORG> in <NAME> v. <ORG> (supra) has been reversed and they are no longer good law. It may be mentioned further that in the later judgment it has been held that the plea of "latent defect" made by the respondent in the given case had to be made good by them. It was for them to show that they had taken all reasonable care and despite this, the defect remained hidden.

11. On the next question of the amount of Rs. 4,000 which was received by the respondent in the shape of charities from his relatives and which was included for the purpose of awarding special damages to him on the allegation that he was under the moral and not legal duty to refund that sum, Mr. <NAME> submitted that since there was no obligation of the respondent to refund the said sum to the persons from whom such charities were received and when no sipecific averment was there to prove that the respondent had actually refunded the said sum, the <ORG> should not have made the award for the said sum of Rs. 4.000. In support of his argument and for the principles, Mr. <NAME> first relied on the case of <NAME> v. <ORG>, reported in 1948 (1) All ER 779. In that case the plaintiff, who was injured due to the negligence of the defendant, received no wages during the period of his disability, but the Minister of Pensions and his employers paid to him, in pension and sick pay amounts which- together equalled his wages. It further appears that in the said case which was an action for damages for negligence, liability was admitted and the sole question for determination was the amount of damages and it was held that the amount of wages lost by the plaintiff should be included in the special damages awarded to him although he was under only a moral, and not legal duty to refund that sum. The argument advanced by Mr. <NAME> on the question of charities as mentioned hereinabove appears to us to be of no effect or avail in view of the Bench decision of this Court in the case of the Motor Owners' insurance <CITATION> , . In that case two appeals were preferred from two applications, one by the husband and the other by the wife, for the recovery of compensation based on the same accident, when the bus in question knocked down both of them causing serious injuries. The husband preferred a claim for Rs. 10,000 and the wife laid her claim at Rs. 35,000. Both the applications were heard analogously on the same set of evidence by the <ORG> which ultimately awarded a sum of Rs. 5,600 towards the compensation of the husband and a sum of Rs. 13,681 for the wife. Against the said award and decree, two appeals as mentioned hereinbefore were preferred and there were cross objections. In that decision a point arose as to the interpretation of Section 110 of the Motor Vehicles Act and it has been held that the compensation under the said section will include all the amounts inclusive of payments made by a third party. There is no legal obligation of any third party to pay the amount. The cardinal principle to be followed in such cases is that the wrong doer must pay, whether the third pays or not.

12. On the next question of the amount of care, due diligence and onus, apart from relying on the English Cases as mentioned hereinbefore, Mr. <NAME> also relied on the case of <CITATION> , . In that case the question of rash and negligent driving resulting in accident and the manner of proof thereof, the presumption of negligence and the applicability of the doctrine of res ipsa loquitur came up for consideration. In that case a bus was going on a clear and visible road at high speed and there was no traffic near the place of accident. The bus took a turn to the left for no apparent cause went off the road and after dashing against two trees overturned As a result of that some passengers died and others received severe injuries. The appellants in that case contended that the doctrine of res ipsa loquitur could not be applied, it has been held in that case that the doctrine of res ipsa loquitur only means that an accident by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other causes. In such a case the mere fact of the accident will be prima facie evidence of such negligence. The burden is on the defendant to explain and to show that the accident occurred without any fault on his part. Thus, the applicability of the doctrine to such cases is merely a rule of evidence relating to proof and nothing more. The doctrine is not a rule of law but no more than a rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant Thus, the doctrine does not apply when the cause of the accident is known. In that case it was also held that there was no apparent reason for the accident nor was the reason extraneous or patent. The circumstances and apparent facts relating to the accident were only consistent with the theory of rash and negligent driving on the part of the driver. In such a case the doctrine of res ipsa loquitur would be applicable and hence, in the absence of any explanation on the part of the appellant to disprove negligence, the <ORG> could infer negligence on his part.

13. The maxim res ipsa loquitur means that the accident talks or the things speak for themselves. There may be certain accidents which are patent and self-speaking that they will shift the burden of proof on the defendant. It is no doubt, a rebuttable presumption. Before a <ORG> to succeed in an action against the owner or driver of the vehicle, the claimant has to establish some negligence or a breach of duty by the defendant towards him and its causal connection with the injuries sustained by the claimant.

14. Where the accident occurs due to bursting of tyre, as in the instant case, the duty of the injured or the heirs of the deceased is initially to allege and prove facts leading to negligence of the owner or driver of the vehicle. Then the duty of the driver and the owner arises to show whether there was absence of negligence! and all possible care and precaution was taken to avert the accident. The plea of inevitable accident can certainly be raised. Bursting of tyres generally does not take place in new tyres. Old tyres beyond & maximum capacity should not foe used and a driver should be vigilant when he runs the vehicle and see if any impediment is on the way. Every case requires the care of a prudent and reasonable man. Before starting, machinery has to be tested. An owner guarantees the soundness of the vehicle to his passengers as in the case of trains. Thus in all cases of enquiry before the <ORG> or the <ORG>, as the case may be, in investigating the matter of negligence, the elements and principles of tort have to be invoked and the defence open in the cases of tort is open in the case of negligence. What is negligence depends upon determination of various factors. There are three basic elements of tort (1) an act or omission on the part of the defendant (2) intention or negligence or the breach of a strict duty on the part of the defendant and (3) damages resulting to plaintiff from the wrongful act of the defendant which is not too remote. An act would mean doing of a positive act and omission means breach of duty. In each case it will be duty of the plaintiff to connect the wrongful act with the damages accruing and show that the defendant was negligent. Inevitable accident is an accident such as that the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency and in the circumstances he Was placed.

15. Applying the aforesaid tests in the facts and circumstances of the case and more particularly after scanning the evidence, it appears that the award as was made was due, proper and reasonable. P. W. 1 Dr. <NAME> has established that there was a comminuted fracture over both bones of the left leg of the respondent with an evidence of old operation, upper fractured tibia having united but the lower fracture remained un-united and in his opinion the respondent has suffered a permanent partial disablement to the extent of 40%. He has further opined that the respondent who was an <NAME> and who is required to "perform his duty mostly standing would not be in a position to discharge his normal functioning because of the accident in question. He has further opined that the movement of the left ankle joint of the respondent was 50% of the normal i.e. about 40° instead of 90 which would mean that there would be restriction in sitting and squatting by the injured and furthermore there would also be some limping. He has further proved that the respondent was very much mentally depressed and he will have considerable difficulties in discharging his duties of <NAME>, who as mentioned hereinbefore is required to perform his work standing, because of the shortness of his leg due to the accident. He has further established that because of these difficulties there may be occasional flare-ups of the respondent and his life shortened due to repeated flare-ups which may cause pain and pus formation leading to amloyd degeneration of the liver and anaemia. It further appears that the respondent herein has also established by cogent and reliable evidence about the expenses which he has incurred in the instant case. The learned Tribunal has found that the respondent has succeeded in establishing the expenses on account of Doctor's fees and medicines to the tune of Rs. 3,000 which was spent 'by himself and a further sum of Rs. 4,000 which he received as charities from his relatives. The main evidence of <ORG>, for the purpose of establishing the fact that all due diligence and reasonable care was taken, was sought to be led through O. P. W. 1, <NAME> the tyre examiner of <ORG>, Howrah. He evidence is that he was employed with the appellant for about 12 years and he took special training in Messrs. <NAME> & Co He has deposed that the offending vehicle W. B. S. 920 was a double decker <ORG> bus and the rear tyres of the same are of smaller size than those of the front wheels. He has further deposed that reasonable expected life of a new tyre is about 80,000 K. M. of running service in the streets of Calcutta and the history of each of the tyres as are used in the vehicles of <ORG>, are maintained He produced a chart Ext. A for the purpose of proving that the tyre in question on the material date had done only 48,694 k. m. and he himself had checked its pressure and the condition before the same was fitted in the offending vehicle on 2nd April, 1966. He has further deposed with reference to the chart in Ext. A that the said tyre was first fitted in vehicle No. W.B.S. 1514 on June 1, 1965. It further appears from his evidence that this witness, who claims to be an expert in the matter of examination of tyres, to only a Matriculate and took his training with Messrs. <NAME> & Co.. as to manufacture, repairs and maintenance of tyres and such training lasted for 5 days only. The chart Ext 'A' according to us has not been duly proved 'because the said O.P.W. 1 has not. aS it appeals from the record, been able to testify to all the entries in the said chart to be made and prepared and main tamed by him. The other evidence of the driver and conductor of the offending vehicle, who are O.P.Ws. 2 and 3 respectively were also placed before us by Mr. <NAME>. Their evidence shows that at the time when the tyre had s burst, the bus was not overloaded, he vehicle was not in a high speed and the condition of the road at the relevant time, as usual with Calcutta streets of the present day, was precarious. Be that as it may, the evidence of the said two witnesses could not be of much help and assistance in the facts and circumstances of the instant case. The bursting of the tyre has been conceded by the appellant and it is also an admitted fact that the respondent concerned, had received multiple injuries including fractures in his left leg as a result whereof he has suffered and is bound to suffer in future. It has been found in the case of <CITATION> , (supra) that where the deceased is an earning member of the family, on whom other members might be dependent, the basis for calculating the pecuniary loss to the dependants may depend upon data which may not be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. The pecuniary loss can be ascertained only by 'balancing on the one hand the loss to the claimants of the future pecuniary benefits and on the other any pecuniary advantage which from whatever source comes to them by reason of the death. Thus, the loss and the gain have to be ascertained and to be adjusted against each other. The burden will certainly be on the claimant to establish the extent of the loss. But it will not be sufficient for him to prove that by the death of the deceased he lost a mere speculative possibility of pecuniary benefit. To succeed, he must prove a reasonable probability of pecuniary advantage. Thus, in a case of fatal accident it is the loss of benefit to be balanced by the loss of gain that has to be assessed as damages. Where merely bodily injury is caused resulting in permanent physical disability, the pecuniary loss might be assessed on the disadvantages suffered by the person for the rest of the life, in the case of a child, the loss of probable benefit that the child might have been able to render may be in the region of conjecture, but some nominal damages ought to be given even in the case of death of a young child. Where a non-earning member of the family is killed, the trend of decisions has been to award only nominal damages. But the damages to be awarded in the case of injuries resulting in permanent physical disabilities ought to be based on the consideration so as to set off the disability suffered for the rest of the life. As regards the other injuries not resulting in;

permanent physical disability lesser damages commensurate with injuries and suffering might be awarded in suitable cases.

16. In the instant case we are of the view that the onus to disprove the claim of the respondent has not been duly discharged by the appellant <ORG> authorities and admittedly the respondent herein has suffered some loss and damages. In fact on the evidence as available, it is clear that he will have to suffer such loss and damages for life. Since compensation has been assessed and awarded by <ORG> concerned after duly taking into consideration the evidence on record and the tests as mentioned in the Madhya Pradesh judgment, we are not inclined to interfere with such findings in this jurisdiction. On the existing materials we however find that the appellant could not rely on any latent defect, which as sought to be argued by Mr. <NAME> could not be discovered by the exercise of reasonable care, as the evidence of due care as has been alleged to be taken and sought to be proved, is unsatisfactory and unreliable. It is the duty and obligation of the owner in a case like this to prove and establish by reliable evidence that all the necessary precaution and due care was taken for maintaining and offering proper and efficient services to the travelling public, here the respondent, but they have signally failed to discharge the said onus. 'Furthermore, on the facts of the case it has also been duly established that apart from spending Rs. 3,000 the respondent was required to spend another sum of Rs 4,000 on account of his sufferings due to the accident, which sum was received by him in the shape of help, assistance and charities from others and it is of immaterial consideration in the facts of the Case whether such amount was repaid or even repayment of the same was demanded. When the appellant in the instant case is the owner of the offending vehicle then they must be held to be liable to make the payment even in the absence of any evidence of repayment or any demand for the same.

17. In view of the above the points as raised and urged by Mr. <NAME> fail, consequently the appeal also fails and as such the same is dismissed with costs assessed at 20 Gold mohurs.

Let the records be sent down at an early date. <NAME>, J. 18. I agree.


JUDGMENT

1. This appeal is connected with First Appeal No. 318 of 1917 which we. have just decided. In the present appeal <NAME>, the original mortgagor, is the appellant before us. The plea taken on his behalf is that the suit for the mortgage having failed, a suit for a simple money decree is barred by time. The first bond is dated the 9th of September 1905 and under the conditions entered therein, the money was payable at the end of five years. There were farther conditions in respect to interest. In the case of the second bond of the 2nd of August 1903, the money was payable at the end of four years, and there are similar conditions in respect to payment of interest as in the first bond. It is urged that Article 80 , read with Article 116 of Schedule I of the Limitation Act, applies and, therefore, the suit ought to have been brought on or before the 9th of September 1913. Our attention has been called to certain rulings, but not of this <ORG>. The learned <NAME> for the appellant has to admit that there are two rulings of this <ORG> which are against him. In one of these he himself successfully prosecuted the appeal. We refer to the ease of <CITATION> 39 Ind. Cas. 574 : 15 A.L.J. 313 and the case of <CITATION> 50 Ind. Cas. 640 : 17 A.L.J. 647 : 1 U.P.L.R. (A.) 73 : 41 A. 581. He has to admit that if we follow these decisions, then his appeal must fail. Whether these decisions are right or wrong, we can see no reason whatsoever in the present case at any rate for expressing any opinion to the contrary. One of us was a party to one of these decisions and until these decisions are set aside by a larger Bench, we can see no reason why we should not follow them. In the face of these decisions this appeal must fail and we, therefore, dismiss it with costs including fees on the higher scale.