JUDGMENT <NAME>, J.

1. These three First Appeals from order arise out of the order dated 24th July, 1975, passed by <ORG>, Bulandshahr, awarding a sum of Rs. 78,000 as compensation to the claimant under Section 110-A of the Motor Vehicles Act.

2. The facts of the case briefly stated are as follows;--

<NAME> (hereinafter to be called the 'claimant') was working as a driver on Tempo No. UPPP 3480 which belonged to his brother <NAME>. On 10th of October, 197.2, the claimant was driving the tempo from Bulandshahr to Sikandarabad with six passengers in it. At about 3 p. m., when the tempo was near village Lalpurat a distance of three miles from Sikandarabad, Truck No. U.P.P. 1739 was seen coming from the opposite side, driven at a fast speed and in a rash and negligent manner. Noticing that the claimant took down his tempo on the kachcha part of the road to his left. The truck however, came down on that side of the road and dashed against the tempo, as a result of which the tempo fell down in a ditch that adjoined the road. The claimant sustained serious injuries in both his legs as a result of this accident. The driver on the truck ran away. The claimant was taken to <ORG> for medical examination and treatment where it was found that he had sustained as many as 1'8 external injuries. In view of his condition, the claimant was sent to <ORG>. Bulandshahr, and from there to <ORG>, New Delhi, where a part of his right foot had to be amputated sometime between 27th November, 1972 and 1st December, 1972.

3. On 11th December, 1972 the claimant filed the present claim petition. <NAME> (appellant in F. A. F. O. No. 444 of 1975) is the owner of the truck with which the accident took place. In the written statement filed by him it was pleaded that the claimant had no licence for driving the tempo; that he was himself driving the tempo in a negligent manner and the accident took place en that account that the tie rod of the truck suddenly gave way and consequently the accident could not be averted and that the damages claimed were excessive.

4. <ORG> (Appellant in F. A. F. O. No. 420 of 1975), being the insurer of the truck, filed a separate written statement taking up pleas identical to those taken up by <NAME> in his written statement.

5. A number of issues were framed by <ORG> and in answer to those issues it was concluded that the accident took place on account of rash and negligent driving of truck No. U.P.P. 1739. <ORG> further held that even though the claimant did not have a licence for driving the tempo, he could efficiently drive the tempo and that neither the owner of the truck nor the insurer could escape the liability on the ground that the claimant did not have a licence. The plea set up by the owner of the truck that the accident took place on account of the tie rod of the truck giving way was rejected. In the result, <ORG> awarded a sum of Rs. 78.000 as compensation further directing that out of the said amount of Rs. 78,000, Rs. 50,000 shall be paid by the insurance company viz. the appellant in F.A.F.O. No. 420 of 1975, and the balance amount of Rs. 28,000 shall be paid by <NAME> viz. the appellant in F. A. F. O. No. 444 of 1975, he being the owner of the truck. Three-fourths of the costs were also awarded to the claimant.

6. The claimant, the owner of the truck, as well as the insurer feeling dissatisfied with the award of <ORG>, have preferred the present appeals. 7. Learned counsel for the appellant in F.A.F.O. No. 458 of 1975, filed by the claimant, has raised only two points: (i) That since <ORG> did not take into account the prospects of future rise in the income of the claimant and further because <ORG> also did not award interest, <ORG> should not have made any deductions on the ground that the claim-am shall get the determined amount of compensation in a lump sum. (ii) That in any case <ORG> should have awarded interest to the claimant on the amount of compensation awarded to him.

8. In support of his first point learned counsel contended that the claimant was only 37 years of age when the accident took place and his income subsequent to the accident would have increased, if he had not been crippled. It was urged that the prospect of future rise in income was not taken into account by <ORG> while determining the amount of compensation payable to him and, on the contrary, it deducted a sum of Rs. 24,200 on the ground that the determined amount of compensation shall be paid to the claimant in lump sum. Learned counsel stressed that either <ORG> should have taken into account the prospects of future rise in income and then it could make the deduction for payment in lump sum or it should not have made any deduction for lump sum payment. According to the learned counsel, <ORG> was in error in deducting the sum of Rs. 24,200 out of the amount of compensation payable to him, without taking into account the prospects of future rise in income. Reliance for his contention was placed by the learned counsel for the claimant on the case of <CITATION> , 1974 Ace CJ 514 : (AIR 1975 Him Pra 35) (Paras 15 and 16); <CITATION> (1970 Ace CJ 150) (P & H), <NAME> and Co. Kullu v. <NAME> (1973 Ace CJ 414) (<ORG>) and <NAME> v. Sita Devi (1972 Acc CJ 334) (<ORG>).

9. The observations contained in these cases, no doubt, lend support to the contention that deduction for lump sum payment should not be made, if prospect of future rise in income is not taken into account. Those observations were, however, in the context of the facts of those cases. In the case of <CITATION> (AIR 1975 Him Pra 35) (supra) one of the victims was a student of Law aged 21 years and the other was a third year Chemical Engineering student aged about 2l1/2 years. The observation referred to was made in view of the ages and the education of the two victims. In the case of <CITATION> (1970 Acc CJ 150) (Punj) (supra), the person who died was a young boy employed with a firm in England getting average wages of 16-1s-6d per week besides an additional income of 21-11s-2d. The age of the victim was 25 years On the facts, therefore, it was obvious that the income of the victim would have increased, if he had not met the accident. In the case of <NAME> & Co. Kullu v. S. <NAME> (1973 Acc CJ 414) (supra) the victim was a Mechanic in <ORG> and, as is well known, there is always a time scale in <ORG> service. It was in that background that the court held that, since the future rise in income was not taken into consideration, it was not necessary to make any deduction on account of the lump sum payment. In the case of <NAME> v. <NAME> (1972 Ace CJ 334) (Punj) (supra) the victim was a proprietor of a factory manufacturing rubber. The victim thus had a prosperous business and it was in that background that the court held that, since the prospects of the deceased improving his income were not taken into account while assessing the loss, nor any interest was awarded, no deduction could be made out of the amount of compensation on account of lump sum payment.

10. In the instant case the claimant was not in Government service which has a time scale of pay. It also does not appear that he is an educated person. He only knows the job of driver and was middle aged man when the accident took place, it is true that, even in private service, the salaries of employees have an upward tendency. That is, however, not very sure and certain, the claimant was already getting Rs. 300 per mensem as salary when the accident took place. Looking to the nature of the job that was being done by the claimant, the salary could not be said to 'be meagre. In any case he could not expect a rise in his salary beyond Rs. 50 or Rs. 60. Even if the loss of income were calculated on that basis, the deduction made by <ORG> could not be said to be excessive. It is well established that compensation awarded under Section 110-A of the Motor Vehicles Act is to be just compensation. It should neither be punitive to the person against whom the claim is decreed, nor should it be a source of profit to the person in whose favour it is decreed. <ORG> awarded a sum of Rs. 55,000 as a loss of earnings suffered by the claimant. Now, if this amount of Rs. 55,000 is put by the claimant in fixed deposit for a period of three years, it would earn interest at the rate of Rs. 8% per annum. The interest that the claimant would, therefore, earn per month on the aforesaid amount of Rs. 55,000 would be little more than Rs. 366 per mensem. The amount awarded to the claimant for the loss of earnings, therefore, would cover such rise of income which the claimant could reasonably expect in future.

11. In the particular circumstances of this case, therefore, it cannot be said that <ORG> committed any error in making deductions on account of lump sum payment.

12. Coming to the second point raised by the learned counsel for the claimant, we find some substance in it. The legislature has made a special provision for payment of interest in accident claims by enacting Section 110-CC which reads as follows:

"Where any court or <ORG> allows a claim for compensation made under this chapter, such court or <ORG> may direct that, in additions to the amount of compensation, simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim, as it may specify in this behalf."

Now, Section 110-CC provides for interest being paid for the period between the making of the claim and the date of payment of compensation. It has a dual purpose, namely (i) to compensate the claimant for delayed payment of compensation and (ii) to coerce the person/persons who have to pay compensation, so that they may not delay the payment. This is, therefore, a salutary provision. It can also not be said that the payment of interest on the amount of compensation shall result in double benefit to the claimant for the claimant can deposit the amount of compensation and earn interest on it only after it has been paid to him. No pecuniary advantage can accrue to claimant/claimants till then. We, therefore, think that it is a fit case in which interest should be allowed, in the case of <NAME> v. State of U. P. (1975 Ace CJ 154) (All) this court awarded interest at the rate of 61/4 per annum. We propose to award interest to the claimant at a flat rate of Rs. 6% per annum. This disposes of P. A. F. O. No. 458 of 1975.

13. F.A.F.O. No. 420 of 1975 has been filed by <ORG> as insurer of the truck with which the accident took place. Learned counsel appearing for the appellant in this appeal tried to assail the findings of <ORG> on merits.

On being pointed out that in view of the provisions contained in Section 96 (2) of the Motor Vehicles Act , he could not do so and that the only defences available to an insurance company are those specified in Clauses (a) to (c) thereof, learned counsel urged that the provisions contained in Section 96 of the Motor Vehicles Act only apply to proceedings before a court and not to proceedings before a <ORG>, in support of his contention, learned counsel referred us to the case of <NAME>, 1969 Acc CJ 34: (AIR 19.63 Mad 436). This decision was, however, later considered by a Division Bench of the same <ORG> in the case of <ORG> v. <NAME>, 1974 Acc CJ 234 : (AIR 1974 Mad 318) and was not approved.

14. Almost every other <ORG> has taken the view that the defences open to an Insurance Company in a claim under S, 110 of the Motor Vehicles Act are restricted to those specified in Section 96 (2) of the Act, see <CITATION> (1971 Acc CJ 156) (Cal); <CITATION> (1971 Acc CJ 219) (Ker); <ORG> v. <NAME> (1971 Acc CJ 49) (Orissa); <NAME> v. <NAME>, 1970 Acc CJ 1 : (AIR 1971 Madh Pra 145); <CITATION> (1970 Acc CJ 11) (Delhi); <ORG> Ltd. v. <NAME> (1970 Acc CJ 245) (All) (LB); <NAME> v. <NAME>, 1973 Acc CJ 460 : (AIR 1973 <NAME> 317) (<NAME>); <NAME> v. <NAME> (1973 Acc CJ 222) (Orissa), and Northern Indian General Ins. <CITATION> , 1972 Acc CJ 420; (AIR 1973 Mys 107).

15. We accordingly find that it is not permissible for the appellant in F.A.F.O. No. 420 of 1975 to assail the findings of <ORG> on merits. It may, however, be added that, as we shall show while considering the appeal by the truck owner even on merits there is no substance in this appeal.

16. Learned counsel representing <ORG> conceded that it is not possible for him to raise in this appeal any contention of the nature referred to in Clauses (a) to (c) of Sub-section (2) of Section 96 of the Motor Vehicles Act.

17. F.A.F.O. No. 420 of 1975 filed by <ORG> has, therefore, no substance.

18. This takes us to F.A.F.O. No. 444 of 1975 filed by <NAME>, owner of the truck with which the accident took place.

19. Learned counsel for the appellant, in the first instance, contended that, on the face of the record, it was apparent that the accident took place on account of the negligence of the claimant and not on account of the negligence of the person driving the truck. Reading out from the statement of the claimant (P.W. 3), learned counsel pointed out that, on his own admission, the claimant had taken down his tempo on the patri of the road on the left side and that he did not stop the tempo even though he had seen the truck coming at a very fast speed when a distance of four furlongs intervened between him and the truck. Learned counsel further pointed out that from the statement of the claimant and the photographs of the spot, it is apparent that there was a shisham tree in front of the claimant and it should therefore, be presumed that on finding the shisham tree in front of him, the claimant all of a sudden diverted the tempo on the road and it was for that reason that the accident took place. The argument, however, does not bear any scrutiny. The claimant did not at any stage say that, on account of the Shisham tree, he all of a sudden diverted the tempo towards the pacca part of the road. Needless to say that none entered the witness-box on behalf of the appellant to make a statement in that regard. The contention raised on behalf of the appellant that, on finding the Shisham tree, the claimant all of a sudden diverted the tempo towards the road, is a mere surmise having no base whatsoever. It is worthy of notice that, according to the consistent statement made by the claimant, he had taken the tempo on the patri of the road on his left side and had slowed down the speed at about 20 k.m. per hour. It is apparent from the photographs on the record that there was a lot of space in between the shisham tree and the pacca road. Since the claimant was driving the tempo as slow as 20 miles per hour, and since there was ample space between the tree and the pucca road, it can, by no means, be presumed that the claimant, before reaching near the shisham tree would have all of a sudden diverted the tempo towards the road.

21. It was also urged by the learned counsel for the appellant that, since the claimant continued to drive the vehicle and since the claimant did not blow any horn, it should be held that the accident took place on account of his negligence. The argument was not at all understandable to us. Having taken down the tempo on the kachcha part of the road, the claimant could not anticipate that the truck would come down on that side of the road and would dash against it. The fact that the claimant had taken down the tempo wholly on the kachcha part of the road and had lowered the speed to 20 klm. per hour shows that all such precaution which a prudent person should, in the circumstances, take had been taken by the claimant. Obviously, the claimant could not anticipate that despite the tempo being wholly on the kachcha part of the road, the truck would come down on that side of the road and would dash against it. True, it is not shown that the claimant blew the horn of the tempo on seeing the truck coming from the opposite side. Since, however the truck was coming from the opposite side, it was not necessary for the claimant to have blown the horn in order to attract the attention of the person driving the truck. He would have assumed that since truck was coming from in front of him, the person driving it would have noticed him. The claimant, therefore, cannot be held guilty of any negligence whatsoever on the ground that he did not blow any horn.

21. Besides examining himself as P.W. 3, the claimant examined two other witnesses to give direct evidence of the accident. They were <NAME> (P.W. 4) and <NAME> (P.W. 9). <NAME> was at that time present at his tube-well which was only 50 paces away from the place of occurrence, while <NAME> was travelling in the same tempo with which the accident had taken place. Both of them were thus natural witnesses. It was consistently deposed by both the witnesses that the tempo was on the kachcha part of the road and that the truck came down on that part of the road and dashed against the tempo as a result of which the tempo fell into the ditch. It could not be shown that the evidence of the claimant and that of the aforesaid two witnesses suffer from any inconsistency or infirmity. On the evidence of the said witnesses it was amply proved that the truck with which the accident took place was being driven in a rash and negligent manner.

22. Some stress was laid by the learned counsel for the appellant on the fact that when the truck was examined by Sant Ram Head Constable (P.W. 5) he had found that emergency brakes had been applied. It was urged by the learned counsel that this should lead to the conclusion that the person driving the truck acted with due care and caution. We regret we cannot draw such an inference. As already stated earlier, if the person driving the truck had been vigilant, he should have seen the tempo ahead of him when he was some distance a way from it and, consequently, there could be no justification for his coming to the right side of the road. The fact that he came to the right side of the road is borne out from the evidence of the eye-witnesses on the record. It is further borne out from the photographs (Exs. 10, 11 and 12). It is quite likely that the person driving the truck had either dozed off or was talking with some person and was not seeing in front of him and that he noticed the tempo only when he was dangerously close to it and, therefore applied emergency brakes. The mere fact that emergency brakes had been applied cannot, therefore form basis for the conclusion that the person on the truck was driving it with due care and caution or that the accident took place on account of any negligence on, the part of the claimant.

23. Without dilating any further on this point we confirm the finding of <ORG> that the accident took place on account of the truck being driven in a rash and negligent manner.

24. Learned counsel then contended that the physical damage suffered by the claimant was that his right foot had to be amputated. Learned counsel urged that despite it the claimant could do some work to earn his livelihood. It was vehemently urged by the learned counsel for the appellant that this was not a case of total disablement and, consequently, the compensation should not have been determined on the basis of the total remuneration that the claimant was getting at the time of the accident. We regret our inability to accept this argument. As already stated earlier, the claimant was a driver by profession. It was established by the evidence of Dr. <NAME> (P.W. 2} that not only the right foot of the claimant was amputated, but that he had also sustained fracture in his left leg as a result of which the left foot could also not function normally. The claimant (P.W. 3) making his statement on that point, said that he could move only with the aid of crutches. Obviously, a person moving with the aid of crutches could no more drive a vehicle. He could not even move freely. It was, therefore, obvious that, because of the injury sustained by him in the accident, he could not follow the normal pursuit of his life. We do not think the compensation awarded to the claimant can be reduced on the ground that, even if he cannot follow the normal pursuit of life, he can do some other petty job to earn his livelihood. The contention raised by the learned counsel for the appellant does not deserve any serious consideration and is accordingly negatived.

25. Learned counsel for the appellant, in support of her contention, referred us to the case of Smt. <NAME> v. <ORG> (1975 Acc CJ 90) (Delhi). In this case the victim was a lady and as a result of the injuries sustained by her in the accident, she had suffered permanent disability of her left arm to this extent that she could not move it to its full force. Learned counsel pointed out that, even though this was accepted by the <ORG> and the <ORG> to be permanent disability, yet the claimant was awarded a sum of Rs. 3,000 only as compensation for it. We do not think there can be any analogy at all in this case and in the case before us. As already pointed out, all that had happened in this case was that the claimant could not move her left arm to its full force. It is not stated that the claimant could not use her left arm at all. That apart, her right hand had suffered no injury whatsoever. It was thus not a case in which the victim was permanently disabled from doing her normal work. The disability suffered by her, though permanent, was of a partial nature and it was on that account that the claimant was awarded a sum of Rs. 3,000 only as compensation for it. It is true worthy of notice that it is not apparent from the report of the case as to what amount had been claimed as compensation by the claimant under the head. The Claims <ORG> awarded that amount and the High <ORG> affirmed it. This case is thus of no help to the appellant.

26. Learned counsel next referred us to the case of <CITATION> , 1975 Acc CJ 265 : (AIR 1975 Mad 12'6) (para 8). In this case one of the claimants was a lady named Smt: <NAME>. She was 35 years old. She sustained an injury in an accident and as a result of it her left leg below the knee was broken. After having remained for sometime in the hospital, it was found that the leg had sustained a permanent 20% disability. The lady was awarded a compensation of Rs. 10,000 for that injury. In our opinion, this case can also not be of any help to the appellant. According to the medical evidence in that case, the permanent disability of the left leg was found to be only 20%. She did not receive any injury in the right leg and yet she was awarded a compensation of Rs. 10,000. As opposed to this, in the case before us, one foot of the claimant had been amputated and the right leg had also been fractured. Thus both the legs had sustained injuries and to the extent that the claimant cannot walk except with the aid of crutches. It can also not be ignored that the earning capacity of ladies in this country normally is not the same as that of men-folk. The work of earning bread is principally done by the men-folk. We thus find nothing in the case referred to by the learned counsel to warrant deduction of the amount of compensation in this case.

27. Learned counsel next referred us to a <ORG> decision of this court in the case of <CITATION> , 1974 Acc CJ 248: (AIR 1974 All 147) and pointed out that in this case no compensation whatsoever was awarded for the loss of income even though it was shown that the two doctors had received injuries which could affect their earning capacity. True no compensation in this case was awarded for loss of earning capacity, but it was for the reason that it could not be proved by cogent evidence that the earning capacity of the two doctors had actually suffered permanently on account of the injuries sustained by them. This case can also, therefore, be of no help to the appellant.

28. It is needless to multiply cases. It should be sufficient to say that each case depends on its own facts. In the case before us, as we have already said earlier, the claimant was a driver by profession. On account of the injuries sustained by him, he cannot even move except with the aid of crutches His disability vis-a-vis the profession that he can follow is, therefore, cent per cent. It cannot be said that, since his other limbs are intact, he can still earn something and that he should not have been awarded compensation for loss of his entire income that he would have earned as a driver.

29. Learned counsel next urged that, besides awarding compensation for loss of income, <ORG> also awarded to the claimant a sum of Rupees 3,000 on account of medical expenditure and a sum of Rs. 20,000 on account of pain and suffering. Learned counsel urged that proper evidence was not adduced by the claimant in order to establish that he had incurred an expenditure of Rs. 3,000 on his medical treatment. It was further urged that, since <ORG> had already awarded a compensation of Rs. 55,000 to the claimant on account of loss of income, the <ORG> could not award any further amount to the claimant as compensation for pain and suffering.

30. So far as the first part of the contention is concerned, the claimant made a statement on oath that he incurred an expenditure of six or seven thousand in his medical treatment. This part of the statement made by the claimant was not challenged in cross-examination. That apart, it is borne out from the evidence that, after having been attended to in the dispensary of Sikandarabad, the claimant was taken to <ORG> and then to <ORG> at Delhi. According to the statement made by Dr. <NAME>, the claimant was admitted in <ORG> on 10-10-1972 and was discharged on 3-12-1972. Looking to the injuries sustained by the claimant and the fact that he had to get himself treated first at <ORG> and then at Delhi, there can be no doubt that he should not have spent less than Rs. 3,000 over his treatment. The amount awarded by <ORG> in that connection can by no means be said to be excessive. The omission on the part of the claimant to produce vouchers and receipts cannot, in the particular circumstances of this case, be of much consequence.

31. Coming to the second part of the contention, the relevant section in the Motor Vehicles Act regarding awarding of compensation is Section 110-B . It only states that <ORG> shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just. It would thus appear that <ORG> has a very wide discretion in the matter of award of compensation. When a person is physically disabled on account of any accident, he is not only deprived of his earning, but he also suffers in mind and body on account of the accident. Throughout the rest of his life he suffers with a feeling that he is no more a normal man and cannot enjoy the amenities of life as a normal man can do. In the instant case one foot of the claimant had to be amputated and the functioning of the other leg also got impaired on account of the fracture, with the result that throughout the rest of his life he cannot walk except with the aid of crutches. It is, therefore, obvious that throughout the remaining part of his life he would be a crippled man. He will find himself handicapped in the company of other fellow beings. The fact that he will not be able to even walk freely will be a source of permanent mental torture for him. This is besides the fact that, for some time after the accident, the claimant would have also suffered physical pain and agony. The compensation awarded to a person for this mental and physical pain and suffering is separate from the compensation that is awarded to him on account of his loss of earning capacity, and it has been so recognised in a number of cases, see <CITATION> (minor), 1974 Acc CJ 72 : (AIR 1974 Mad 212), M/s. Assam Corporation v. <NAME>, 1974 Acc CJ 381 : (AIR 1975 Gau 3), <CITATION> (1974 Acc CJ 414) (Assam), <NAME> v. <NAME> (1975 Acc CJ 122) (Delhi). <NAME> <CITATION> , 1975 Acc CJ 128 : (AIR 1975 Punj 254), <ORG> v. <NAME> (1975 Acc CJ 427) (Delhi), and <ORG> v. <NAME> (1975 Acc CJ 326) (<ORG>).

32. The contention raised by the learned counsel for the appellant that, since the claimant had been awarded compensation for loss of income, he should not have been separately awarded compensation for pains and sufferings and agony, cannot therefore be accepted and is negatived.

33. Learned counsel for the appellant then urged that, in any case, even if the person driving the truck was negligent, the claimant was also negligent and <ORG> should have made some deduction on the ground of contributory negligence. Learned counsel stressed that the claimant was also negligent contributing to the accident inasmuch as, finding the shisham tree in front of him he diverted the tempo towards the pucca side of the road. It was urged that, if the claimant had not done so, the accident would not have taken place. We have, however, already said earlier that there is no material whatsoever on the record to warrant a conclusion that the claimant, on seeing the shisham tree in front of him, all of a sudden diverted the tempo towards the pucca side of the road. That part of the contention cannot, therefore, be accepted. It was also suggested by the learned counsel for the appellant in her arguments that, in any case, once the claimant had seen the truck coming in his direction driven at a very fast speed and encroaching on his side of the road, he could apply brakes and stop the tempo to avert the accident. We have however, already said earlier that, since the claimant was driving the tempo absolutely on the kachcha part of the road to his left and had also lowered the speed to 20 k. m. per hour, he had no reason to suspect that the person driving the truck shall come down on that part, of the road and dash against the tempo. Consequently the claimant cannot be said to be guilty of contributory negligence on the ground that he did not stop the tempo to stand still.

34. Learned counsel for the appellant then invited our attention to the fact that the right foot of the claimant had to he amputated on account of gangrene. Learned counsel pointed out that, according to the statement made by Dr. <NAME>, gangrene was the cause of loss of blood supply. It was urged that the doctor did not explicitly state that this loss of blood supply was on account of injures sustained in the accident. It was stressed that <ORG> did not keep this in mind while fixing the amount of compensation. We confess our inability to understand the argument. Dr. <NAME> (P.W. 1) was examined to prove the injuries received by the claimant. A perusal of the evidence of Dr. <NAME> shows that several of the injuries received by the claimant must have bled. Dr. <NAME>. towards the fag end of his examination said that it was a case of crushed injury and it was in the same sequence that he said that gangrenous condition had developed on account of loss of blood supply. On a cumulative reading of the evidence of the two doctors it was apparent that the loss of blood supply was the outcome of the injuries sustained by the claimant and it was for that reason that the gangrene developed. All the same the claimant had put the doctor in cross-examination and it was open to the appellant to put such further questions to him in cross-examination as he liked if he wanted to show that the loss of blood supply or the development of gangrene was not the outcome of the injuries sustained in the accident. No cross-examination was done in order to establish that fact. It was, therefore, not open to the appellant to contend that the doctor did not say in so many words that the loss of blood supply was due to the injuries. In fact the learned counsel while cross-examining the doctor was presumably conscious of the fact that the statement of the doctor read in its sequence, clearly meant the loss of blood supply was on account of the injuries and it was for this reason that he considered it fruitless to pursue the matter any further in cross-examination. The contention raised is accordingly rejected.

35. Learned counsel lastly urged that in view of the amount of compensation that has been awarded by <ORG> no interest should be awarded to him under Section 110-CC of the Act. It was further urged that in any case interest should be awarded to the claimant only on that amount which he would have earned during the period of making of the claim and the date of making the payment of compensation. So far as the first part of the contention is concerned, we have already said earlier that Section 110-CC provides for interest being awarded during the period between the making of the application and the making of the payment and that the purpose thereof is to coerce the relevant person not to delay the making of the payment and to compensate the victim for such delay as may occur by awarding interest to him. In that background we see no reason why interest should not be awarded to the claimant in this case.

36. As for the second part of the contention raised by the learned counsel for the appellant, it does not find support from the language used in Section 110-CC which has already been quoted earlier. According to it, it is implicit in the language used in Section 110-CC that interest, if at all should be awarded on the amount of compensation determined by <ORG>. We find no authority for the proposition that in the event of <ORG> awarding interest it should be awarded on such amount only as the claimant would have earned during the period between making of the application and the making of the payment. We accordingly regret out inability to accept that part of the contention raised by the learned counsel for the appellant and it is also accordingly negatived.

37. No other contention having been raised, we find that F.A.F.O. No. 444 of 1975 is also devoid of substance and must fail.

38. In the result F.A.F.O. No, 420 of 1975 and F.A.F.O. No. 444 of 1975 fail in toto and are hereby dismissed with costs. F.A.F.O. No. 458 of 1975 is allowed to this extent that the claimant appellant shall also get interest at the rate of 6% per annum on the amount of compensation from the date on which the claim was filed viz. 11-11-1972 upto the date of the payment thereof. If any amount has already been paid or is paid in future the claimant shall not be entitled to get any interest on that amount for the period subsequent to the payment thereof. The parties shall however, bear their own cost in F.A.F.O. 458 of 1975.


JUDGMENT

1. The appellant is one of the Nuzvid Zamindars whose judicial history will be found in <NAME> v. Court of Wards(1878)I.L.R. 2 M. 128 and Sri Raja Venkatanarasimha Appa Row v. Sri Baja Rang ay ya Appa Bow, and others(1905)I.L.R. 29 M. 437. The Zamindar alleged that the defendant, the Secretary of <ORG>, constructed in 1863 the Ellore canal to carry the anicut water through the Zamindari and thereby obstructed the flow of water into one of his tanks Voddu cheruva from his other three tanks, and since that time, the Government have been supplying him with water free of charge for the cultivation of his lands about 507 acres 14 cents, which depended on these tanks for their irrigation from 1889 they allowed supply free of charge only for 427 acres, 91 cents, and on his appeal from such redaction it was still further reduced to 202 acres 67 cents. He prays for declaration of his right to the supply of water as before and for certain reliefs consequential on such declaration. The Government filed their written statement and issues were framed which covered all the questions of factrelied upon by the plaintiff. But without taking any evidence, the question whether the plaint discloses a cause of action was first argued and decided against the plaintiff.

2. The Subordinate Judge held that no express 'engagement' under Act VII of 1865 having been alleged, all lands irrigated by Ellore canal water must pay cess. The Judge in appeal held that a promise by the <ORG> in 1863 to supply water may perhaps be implied in the plaint though the issues according to him show that the claim was based on a letter of a Deputy Collector of May 1891 which, it may be remarked, however, is not referred to in the plaint. He was of opinion that unless there was an express agreement, the <ORG> are entitled to levy water cess at pleasure.

3. The decisions of the Lower Courts go beyond the claim set up by the <ORG>, who concede the plaintiffs right to water free of charge for 200 odd acres in their written statement. The Subordinate Judge states that plaintiffs' pleader in agrument before him relied on a contract with the <ORG> and the Judge states that the plaint apparently implies it. Issues 1 to 4 were necessary only if an implied agreement formed the basis of the claim. They certainly included it. In these circumstances as the evidence had not been taken and the plaintiffs relied only on the facts alleged in the plaint and raised by the issue, an amendment of the plaint setting forth that the plaintiff relied on an 'engagement' with government should have been allowed if necessary. I do not think the omission to mention it is fatal to the suit. However to remove any difficulty we have allowed the plaint to be so amended. The question whether the facts set forth disclose a cause of action has been fully alleged before us. As the plaintiff relies upon on 'engagement' in 1863 with the government in the sense in which that term is used in Act VII of 1865 it is necessary to refer to the events which led to the passing of that Act. We assume that the facts on which the plaintiff relies are true. When it was proposed in 1856 or thereabouts to undertake a general survey and reassessment of the lands in the Madras <ORG>, the question arose how those lands irrigated from the Godavari and Ristna anicuts were to be assessed. Till that time the practice in the <ORG> when water was supplied from irrigation works was to charge a consolidated wet assessment when water was permanently available and to levy a water rate only when it was temporarily required for cultivation. The lands were classified as either 'irrigated' or 'non-irrigated'. The Secretary of <ORG> suggested that this classification of lands according as they were capable of irrigation or otherwise from the <ORG> sources should be abolished and all land should be classified with reference to its soil and productiveness without irrigation; a water rate being charged when water is used or permanently available.

4. After a long correspondence which showed that different views were put forward and various difficulties pointed out among them the practical impossibility of fixing the assessment to which the land which has been long under wet cultivation would be liable as unirrigated land, it was finally resolved to accept the suggestion of the Secretary of <ORG> and orders were issued by the <ORG> of Madras on 12th March 1858 that "a water cess calculated with reference'to the additional irrigation canal communications, drainage and embankments is to be levied invariably on all lands irrigated from the Godavari and Kistna channels from the 2nd year of irrigation, without any reference to whether they are <ORG> land, Inam lands or belonging to properietors, and if in the latter two cases, the acting collector (<NAME>) has neglected to take engagements, and opposition is made, he is forthwith to stop the supply." These instructions received the sanction of the Secretary of <ORG> and one of his reasons was that this would be the easiest and most equitable mode of obtaining a fair contribution from the Zamindars towards the re-payment of the expenditure incurred in the construction of "drainage irrigation and other works undertaken by <ORG> and benefiting the lands of those proprietors as well as of <ORG>." This is how the term 'engagement' (see proviso to Section 4 of Act VII of 1865 of which the draft bill was then under consideration) was used so far as I know for the first time.

5. These instructions were communicated to <ORG> and officials to be carried out.

From this the following conclusions may-tie deduced.

6. Water rate was intended in re-payment of the cost of those irrigation works which supplied the water. It was not intended to assess lands which received their supply from sources, as in this case, completely under the Zamindars' control with which the <ORG> had nothing to do. No ' engagements' with ryots were contemplated obviously for the reason that it could be included in land revenue, the only mode at that time of recovering the water charge from proprietors as distinguished from ryots of <ORG> lands was to enter into engagements with them, and if they refused to do so, the remedy suggested was to stop the supply of water. It is clear that the Zamindar was not bound to enter into any engagement with <ORG> to take water when he was the owner thereof as when it was confined in tanks or reservoirs or in virtue of this riparian or easement right from rivers, as it was not open to <ORG> to prevent him from doing so. The <ORG> were not in those cases supplying him with water; nor could they therefore stop the supply.

7. It is probable therefore that where the Government continued the supply it was under some engagement.

8. With reference to these two clauses there was no difficulty. In the first class of cases in which the irrigation was carried on without any" cost to <ORG> and in exercise to the proprietors' rights of easement by vicinage, of ownership, no water cess levied, or in fact, could be claimed. In the second class of cases where irrigation was carried out with water supplied from the <ORG>s and only by means of <ORG> irrigation works, channels etc., the <ORG> were entitled to dictate their own terms for the supply of water. If they were not accepted, they were entitled to stop the supply. The result was, between the construction of the <ORG> and the passing of the Act of 1865, water was supplied to the proprietors on terms.

There were, however, other cases which it was more difficult to deal with.

9. Inams were exempted from permanent sanads and the Nanja inams were irrigated from Government sources. Similarly where there were Zamindaries (and those formed out of Havelli lands in which water sources were retained under Government control would be such) which were irrigated from Government sources.' As they were entitled to Government water, the following rule for water assessment was passed for their benefit on, the 26th October 1861:

Lands granted as nanja inams and fully irrigated accordingly at the Government cost will not be charged with water assessment." The same rule was applied to Zamindars.

10. There was a fourth class. Water from the <ORG> anicut works was often carried to ryotwari lands by means of the old channels which passed through Zamindaries and were for that purpose improved, enlarged and extended by the <ORG>. The Zamindar who obtained his water through these channels naturally claimed the anicut water which flowed through his channels. Some of the <ORG> channels flowed through the tanks or reservoirs which were Zamin property, and the Zamindar was thus deprived of his tank water. Some channels of the Ellore canal in the case before us, cut off the supply to the tanks on which the cultivation of Zamindari lands depended. It is obvious that the Zamindar in all these cases had a just grievence. The <ORG> however considered that the water supply before the days of the anicut was precarious and irregular and they issued the following rule on the 26th October 1861:

No. 12. Such nanja inams as were formerly imperfectly irrigated and have since been fully supplied with water from the anicut works, will be charged at half the above water rates." The rule was made applicable to Zamindaries also. There was a proposal sometimes afterwards that even the rule which allowed the full supply without any charge should be altered to allow half rate on the ground that there was never any adequate supply before. On account of the strong protest of <ORG> the Government altered the half rate rule and allowed water free of charge even where the half rate had been levied in lands which "owing to the construction of several anicut channels and other works connected therewith were found to have lost wholly or partially their pre-existing sources of supply." See G. O. No. 101 Rev. dated the 16th January 1864. For determining what lands lost their sources of supply, the order states "the real criterion is the rate of assessment which the account shows the land is liable to." The order further says "If this indicates the title of the land to water or if other reasonable pr oof can be adduced, then no charge should be made for irrigation as the engagement to supply water manifestly implied a full and not an imperfect supply.

11. There is only one further order to be referred to. The Secretary of <ORG>, in considering whether a cultivator should have the option to refuse <ORG> water, said: (the 16th January 1864) "with reference to your question" 'whether the ryotshould be allowed the security against an excessive charge which the option of deciding, by a stated period of each year, whether he will have water or not will give him,' I am clearly of opinion that such option should be permitted. There is little ground for apprehension that the option would be exercised by the cultivator in the way of declining to use the means of irrigation when they are supplied to him at a moderate price, and the possession of it would in no respect limit the right which the <ORG>, acting on your own behalf or on that of the irrigation Company, must retain, the right of declining to supply any particular tract of country with water, unless the cultivator should be prepared to enter into engagements to take the water at the stipulated rate in such numbers and for such terms of years as might warrant the required outlay. Although few would probably reject the opportunity, yet no compulsion to take the water must be exercised towards the dissentients and they must in no way be disturbed in the possession of their lands, so long as they desire to hold them, and continue to pay the ordinary rate of assessment. This despatch marks it clear that the Secretary of <ORG> wanted to give the ryots the same option of taking, anicut water as the Zamindars and Inamdars had. This order was communicated by the Madros <ORG> to the officers concerned and it was pointed out by the <ORG> that "as regards lands which have been fitted for irrigation by the owners and have actually been irrigated for at least one season it may fairly be held that such preparation and acceptance of water imply acquiescence with the usage ot the country which does not require any formal engagement." That really means in other words, an engagement will be implied between the <ORG> to furnish water and the ryots to receive this supply. In those cases where the water was found on the ryots the option was allowed and agreements were directed to be taken from them for any further supply of water. And they added, " The same rule must of course apply equally to the holders of lands in Zamindaries--until the. zamindars come to terms with the <ORG> and collected cess." In accordance with those directions rules were framed in 1864; the bill which subsequently became Act VII of 1865 was directed to be prepared in accordance with these orders of the Secretary of <ORG>. I extract below two of the rules."

12. Rule (7). "Where ryots desire to convert dry land into wet, application is to be made to the Collector either directly or through the Tahsildar on or before the 31st March, and the Collector Will arrange with <ORG> for the supply of water. Where the means of irrigation for such land already exist the ryot shall, as a rule, have the option of continuing or ceasing to use the water at his pleasure, provided that where water is taken etc." This shows clearly no water-cess was intended where the ryot uses only the means of irrigation he already had.

13. Rule (10). These rules shall apply to zamindary and Inam lands except in the case of zamindaries, a composition shall have been made either for fixed yearly payment or according to the quantity of water supplied. Provided always that no charge whatever shall be made under these rules for a single crop for zamindary or Inam land where such lands are proved to have been customarily cultivated with wet crops under old tanks, channels or by any means of irrigation whatever prior to the construction of anicuts, or to have been charged in the accounts with such a rate of assessment as indubitably indicates the title of such land to water or by the terms of the grant to have been given as nanja Inam."

14. There were thus three circumstances recognised as conferring a right to exemption from water rate otherwise leviable.

(1) The existence of any means of irrigation including tanks, channels whatever prior to the construction of anicuts;

(2) Lands being charged with <NAME> assessment, and (3) The title, deed showing that an Inam was granted as nanja.

15. Two conclusions follow : That it was not intended to levy any charge on cultivation carried on with any pre-existing source of supply, tank, channels and rivers; that in these instances the Government were only carrying out a legal obligation created by interference with such pre-existing source of supply which would have been enforced by the Courts.

16. An Act was necessary to collect the cess in the same way as land revenue and perhaps to remove the difficulties that might be caused by taking water through Zamindari and Inam lands. It was first intended only for the districts which used the Godavery and Kistna water and power was reserved in the original draft to extend it to other Districts, But finally the bill was drafted for the Presidency.

17. Before considering what the relations of the parties were or whether there was an engagement between the parties at this time i.e., in 1863 and 1864, I shall finish my review of the proceedings which led to the Act.

18. In forwarding the draft Act to the Government Pleader, the Government asked his opinion whether it was necessary to specify Zamindary and Inam lands in order to enforce the special cess " on land newly irrigated from Government sources at Government expense." The opinion of the Government Pleader was in the affirmative and he drafted the section in these terms : " This Act shall extend to all lands held by Zamindars or Inamdars for the irrigation of which water may be, after the passing supplied or used from any such river, stream, channel, tank or work as specified in the section." On its being pointed out that this might preclude the levy of any water rate for irrigation newly supplied to such lands since the construction of the anicut but prior to the passing of the Act and which supply may hereinafter be continued, the Govern-ment modified it by omitting the words " after the passing of this Act newly " and the sections then ran in the form in which it was finally passed by <ORG> thus " This Act shall extend to all lands held by Zamindars, Inamdars or any other description of landholders for the irrigation of which water may be supplied or used from any such river, stream, channel, tank or work as is specified in section, provided always that where a Zamindar or Inamdar by virtue of engagement with the Government is entitled to irrigation free of separate charge no cess under this Act shall be imposed for water supplied to the extent of such right and no more."

19. In the case before us the water is supplied to the lands in suit from a <ORG> source to wit, Ellore canal and <ORG> works, and therefore unless the plaintiff proves the ' engagement ' that he sets up the <ORG> are entitled to levy water tax. The word ' engagement' in the section is no doubt used in the same sense in which it was used in the proceedings to which I have already drawn attention. Now what was the state of things when the Act was parsed. When the <ORG> intercepted the flow of the water from the other three tanks mentioned in the plaint into Vodu Cherava, they undoubtedly inflicted an injury upon the plaintiff and if the plaintiff had enforced his claim in a civil court he would have obtained a decree for compensation payable to him for such interference which would probably have been a direction to supply him with that water which his tank was usually getting before the interruption or some equivalent compensation. Now it is not to be presumed that the <ORG> did a wrongful Act if the facts are consistent with any other supposition. The natural presumption is that they compensated him in some form. We find that the <ORG> had issued orders that where their irrigation works had interfered with a pre-existing source of supply, water was to be supplied free. We see here there was such interference and the consequent free supply. The orders also show that in other codes water was to be supplied to Zamindars under engagements to pay at certain rates. We see here no such payment received or demanded. We further find that even as to the ryotwari lands the <ORG> proceedings directed that engagements should be entered into and that the <ORG> presumed that, when the ryots prepared their lands for irrigation sources an engagement might be implied. Under these circumstances unless the free supply of water from 1863 is explained by <ORG> it appears to me the presumption, not only natural but almost irresistible, is that there was an implied engagement between the parties for the free supply of water. The Judge rightly observes, "The Act was an embodiment of the <ORG> Order"; but he holds that " it was for the Zamindar to have entered into an engagement with <ORG> as to the extent of irrigation to which he was entitled." In my opinion he is wrong in holding that an express agreement is necessary. That the plaintiff was irrigating the lands in suit with <ORG> water free of charge is clear evidence that he was entitled to water sufficient to irrigate them either because they were then being irrigated with his tank water or could have been so irrigated with his tank water or it was only on those conditions that he permitted any interference with his property.

20. The "<ORG> Pleader contends that, though there may be an engagement, it is only to the effect that the <NAME>s are entitled to receive from the <ORG> water necessary for the old customary irrigation of their lands, that is to say, they are not entitled to water sufficient to irrigate that area which is entered as wet in the permanent settlement accounts and in the absence of any allegation in the plaint that the land for which they claim free supply of water is land so entered as wet in the old accounts, the plaintiff is not entitled to maintain the suit. If the argument is that the engagement in 1863 with reference to this estate had reference only to the old settlement accounts to the knowledge of both the parties, it is open to the <ORG> to plead it and prove the same. That would be an express agreement. Otherwise it cannot be used to limit the plaintiff's claim based on the state of things in 1863. For, the <NAME> may have improved the capacity of his tank or increased the area of his wet cultivation since the sanad and the supply of water must have been made to compensate him for his loss then sustained. If the argument is that an ' engagement ' referred to is to be implied from the conditions that existed at the date of the permanent sanad it is not answer to the plaintiff's claim; because if the facts imply an engagement in 1863 when the supply was obstructed, that there was another engagement in 1802 or afterwards when the permanent sanad was granted, unless it is shown that is the only engagement which is intended by the Act of 1865, is not material. The section itself is not restricted to any engagement at the time of the permanent settlement. And I have no doubt it was open to the parties to enter into any engagement at any time they liked. The plaintiff may be entitled to say that if the old Gudigat wet area according to the permanent settlement accounts entitled him to more land than what he now claims then he should be entitled to the free cultivation of lands to that extent in addition. He may also be entitled to say, if he was getting water sufficient to cultivate more lands than the area he now claims, he is entitled to such quantity of water and cultivate more lands with it as it is reasonable to presume that the <ORG> could not have intended to deprive a man of his property without compensation. This is apparently the effect of G. O. No. '^416, 17th June 1895 " where the mamul wet areas to be allowed are found to be in excess of the highest recorded areas under wet cultivation in the village concerned, the maximum area irrigable should be allowed." It is necessary however to consider this question as he makes no such claim in the plaint. The rules, already extracted, in force at the time the Act was passed, support this conclusion. He is entitled to exemption if his pre-existing source of supply is interfered with or if the accounts show a nanja assessment or if the title deed supports the claim. The one is not exclusive of the others. The Act, as rightly pointed out by the Judge being only an embodiment, so far as this matter is concerned, of the pre-existing rules, an engagement will be implied if any of these grounds exist. The tanks, if. any, in the Zamin undoubtedly belonged to the <NAME>. The <ORG> lay no claim, to them. It is not probable that there was therefore any engagement by the <ORG> to supply water for the irrigation of such lands under tanks. From where could the <ORG> supply such water? Not from these tanks with which they had nothing to do so, and it is not shown there was any other source of water supply. No engagement can therefore be implied. An engagement can only be implied in those cases in which it was in the power of the <ORG> to stop the supply of such water themselves. Otherwise I see no reason for any implied contract so far as the lands irrigated with any pre-existing source of supply which did not belong to the <ORG> are concerned. For these reasons I am unable to accept the <ORG> Pleader's argument that the engagement to be proved has reference only to the wet area shown in the permanent settlement accounts. If, however, it is necessary to prove what area was so entered, then, the fact that these lands were under cultivation from 1863 to 1889 and it is not shown by the <ORG> that the lands were brought under cultivation only sometime after the permanent sanad was granted, would be evidence to show that they were mamool wet even at the date of the Permanent Settlement. The Permanent Settlement accounts are with the <ORG> and if the extent of wet cultivation under these tanks is referred to in those accounts, it is for the <ORG> to produce them if it is material.

21. The only case that has been cited in argument before <ORG> against the Government Pleader's contention, (Appeal No. 182 of 1904) was a similar case and the learned Judges, (<NAME> and <NAME>) stated the question for decision in these terms : " The question for decision in this appeal is, in effect, what is the extent of land in the village of Ravipad which was irrigable from the irrigation works existing before the construction of the Godavari anicut irrigation system." I entirely agree. It appeared that various accounts showed the various extent of land under cultivation but they adopted the greatest area irrigated which no doubt showed those lands were capable of irrigation works before the days of anicut. They did not put the plaintiff to proof of what the settlement area was. I am therefore of opinion that, if the facts relied upon by the plaintiff are proved, a cause of action is disclosed. The Judge is therefore directed to return findings on the issues in the case. It will be open to him to direct the Subordinate Judge to submit findings to himself.

Six months are allowed for findings and seven days for objections.

22. <NAME> concur in the decision just now pronounced by my learned brother and if I add a few words in my own language it is merely on account of the importance of the questions involved in this case. This is one of those cases arising out of the Government's having constructed anicut, channels and other works connected therewith in the Godavari and Kistna deltas. Some of these channels interfered with the sources of irrigation to the lands of certain landholders or interfered with the flow of water to the tank which formerly supplied water for irrigation to such lands. The Proceedings of the Board of Kevenue dated the 11th February 1898 cbntain the following:

When the system of anicut irrigation was introduced into the Godavari and Kistna deltas, Government allowed free irrigation from the anicuts to all lands which, owing to the construction of the several anicut channels, and other works connected therewith, were found to have lost, wholly or partially, their pre-existing sources of supply (G. 0. No. 101, <ORG> dated 16th January 1864.)

23. This shows that about 1864, the <ORG> offered to allow free irrigation from the anicuts to such lands as were deprived of their former sources of supply. The owners of such lands who did not enter into litigation with the <ORG> in order to prevent <ORG> from interfering with the old sources of supply and who took the water supplied by the <ORG> anicuts must be taken to have accepted the offer of <ORG> as satisfaction of their claims against <ORG>. The fourth paragraph of the plaint in this case says that the <ORG> supplied the plaintiff's land with water from the year 1863 to 1900 and that the plaintiff accepted such water. There was in my opinion, therefore, a clear completed engagement between the <ORG> and the plaintiffs set out in the plaint and hence the plaint shows a good cause of action. Suits similar to this were instituted by the proprietrix of the village of Ravipad, the proprietors in Chinchinada and by two other proprietors in 1902 in the District of Godavari. Mr. <NAME>, the learned District Judge who decided those suits acted upon the <ORG> Order of 1864 and found an implied engagement between the <ORG> and the proprietors of those estates and gave effect to that engagement as against the <ORG>. On appeal to <ORG> by the <ORG>, it was contended as the very first ground in the appeal memorandum (see the appeal memo in Appeal No. 182 of 1904) that the District Judge erred in law in finding that there was an implied contract between the plaintiffs and the <ORG> to allow free irrigation for the extent of land, the irrigation sources of which had been cut off by the anicut works. The learned Judges {<NAME> and <NAME>) who decided that appeal and connected Appeals Nos. 183 and 184 of 1904 saw nothing in that contention and begin their judgment at once with the sentence. " The question for decision in this appeal is, in effect what is the extent of land in the village of Ravipad which was irrigable from the irrigation sources existing before the construction of Godavari anicut irrigation system." Following the decision in those appeals, we must in this case set aside the decision of <ORG> which held that the plaint discloses no cause of action. I may add that in A. Section No. 182 of 1904 it was assumed that, if there was an engagement between the <ORG> and the proprietor that engagement was to supply water free of tax on the extent of land which was irrigable from the irrigation works existing just before the construction of the Godavari anicut irrigation works, and not merely on the lands which were irrigable as wet lands at the time of..the permanent settlement. The contention of the learned <ORG> Pleader before us that the engagement mentioned in Act VII of 1865 Section 1 (a) relates to the engagement at the time of the permanent settlement cannot be accepted in the face of the decision in Appeal No. 182 of 1904. If seems unreasonable to hold that after a land holder has improved his zamindari and brought between 1802 and 1862 a large extent of land under wet cultivation by improving his irrigation sources, when the <ORG> by their new anicut system cut off the sources of irrigation supply to those large extents of lands, they intended to arrange with the zamindar to supply him water free of charge only to the wet area, which existed in 1802 but not to the area which had begun to be permanently cultivated as wet at the time when they constructed the anicut channels. The <ORG> Order of 1864 and the Board's Proceedings of 1898 already referred to are against the contention that the <ORG> did not undertake liability to supply water free to all those lands whose then existing irrigation sources were interfered with by the <ORG>'s constructions. In the result I agree in the order proposed by my learned brother.