PETITIONER: STATE OF MADHYA PRADESH & ANR. Vs. RESPONDENT: DHARAM BIR DATE OF JUDGMENT: 08/06/1998 BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:

J U D G M E N T S.SAGHIR AHMAD, J.

1. "No, mere experiential knowledge is no equivalent to a Degree in Engineering" is our positive answer to the negative argument that respondent, though not possessing the requisite qualification, be held to be validly holding the post of principal, <ORG>, on the basis of the experience.

2. The facts, the questions raised and the findings thereon are recorded hereinafter.

3. The respondent was appointed as Senior Instructor on 3.12.1957 and was promoted as Supervisor Instructor on 13.12.1959. Thereafter he was promoted as Foreman and then as Group Instructor.

4. On 15.6.1976, respondent was promoted as Principal, class II, for a period of six months or till the candidates duly selected by <ORG> for that post were available (whichever was earlier). The post of Principal, Class II was a newly created post and was not included in the M.P. Industrial (Gazetted) Service Recruitment Rules, 1965 and since the mode of appointment or recruitment Rules, 1965 and since the mode of appointment or recruitment on that post was not prescribed till about 1985, the respondent continued to work on that post at different places where he was transferred from time to time.

5. On 28.6.1985, Madhya Pradesh Industrial Training (Gazetted) Service Recruitment Rules 1995 (for short, Rules), made by the State Government under Article 302 of the Constitution, were published. These Rules replaced the M.P. Industrial (Gazetted ) Service Recruitment Rules, 1965. The new Rules provided that the post of principal, Grade Ii, would be filled up by direct recruitment to the extent of 75 per cent and by promotion to the extent of 25 per cent. The manner of recruitment by way of promotion was indicated in Rules 13 to 18.

6. After the Rules were made and duly promulgated, a meeting of <ORG> was held in November, 1985 to consider the eligible candidates for regular promotion on the post of principal, Class II. Since the respondent did not possess a Degree or Diploma in Engineering prescribed under the Rules for the post of Principal, Class II, the <ORG> found him fit only for the post of Vice Principal and, therefore, by order dated 12.06.1986, he was promoted and appointed as Vice- Principal, <ORG>, Bhilai.

7. It is this order which constitutes the basis of this protracted litigation as the respondent who was already working as Principal, Class II characterises the said order as an order of reversion.

8. The respondent challenged this order in a Writ Petition filled before <ORG> which was transferred to <ORG>, Jabalpur, and the <ORG>, by its judgment dated 19.4.1994, allowed the petition with the finding that the requirement of possessing the educational qualification of a Degree or Diploma in Engineering for the post of Principal was applicable only to direct recruitment and not to promotions and as such the respondent who, admittedly, did neither possess a Degree nor a Diploma in Engineering, was still entitled to be promoted as Principal, Class II.

9. It is the logic of this apparently illogical reasoning which is to be scrutinised by us in this appeal.

10. Appointments, either by direct requirement or by promotion, on the post of Principal, Class I or class II as pointed out earlier, are made in accordance with the provisions of the Rules promulgated in 1985, Rule 7 which deals with "appointment to the Service" provides as under:-

" 7. Appointment to he service.- An appointment to the service, after commencement of these rules, shall be made by the Government and no such appointment shall be made except after selection by one of the methods of recruitment specified in rule 6."

11. Method of recruitment has been indicated in Rule 6 which is quoted below:-

" 6. Method of recruitment.- (1) Recruitment to the service after the commencement of these unless, shall be by the following methods; namely,:-

(a) By direct recruitment through selection;

(b) By promotion of the members of the Service as specified in Column (2) of the Schedule IV;

(c) By transfer of the persons substantively appointed on the specified posts in the specified service.

(2) The number of the persons recruited under clauses (b) and (c) of sub-rule (1) shall not at any time exceed, the percentage as shown in Schedule II of the number of duty posts.

(3) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular vacancy or vacancies in the service, as may be required to be filled during any particular period of recruitment, and the number of the persons to be recruitment, and the number of the persons to be recruited by each method shall be determined on each occasion by the <ORG> in consultation with the Commission.

(4) Notwithstanding anything contained in sub-rule (1) if in the opinion of the <ORG>, the exigencies, of the service so requires, the <ORG> may, after obtaining the approval of the <ORG> in <ORG>, adopt such method or methods of recruitment to the service other than those specified in the said sub-rule, as it may by order issued in this behalf prescribe."

12. Conditions of eligibility of the candidates for direct recruitment are indicated in Rule 8. first part of the rule deals with the requirement of "age". Sub-rule (2) which prescribes educational qualifications is quoted below:-

The candidates must possess the educational qualification prescribed for the service as shown in the Schedule III:

Provided that-

(a) In exceptional cases the <ORG> may, on the recommendations of the <ORG>, treat any candidate as qualified for appearing for selection who though not possessing any of the qualifications prescribed in this Clause, has passed examination conducted by other institutions by a standard which, in the opinion of the <ORG> justifies the consideration of the candidate for selection.

(b) Candidates, who are otherwise qualified but have taken degrees from foreign Universities not specifically recognized by the <ORG>, may; also be considered for selection at the direction of the <ORG>.

13. The educational qualification prescribed in Schedule III is a Degree or Diploma in Engineering.

14. Rule 13 provides for appointment by promotion. Rule 14 provides conditions of eligibility for promotion. Both the Rules are quoted below:

" 13. Appointment by promotion.- (1) There shall be constituted a Committee consisting the members mentioned in Schedule IV for making a preliminary selection for promotion of the eligible candidates.

(2) The committee shall meet at intervals ordinarily not exceeding one year.

(3) 15 percent and 18 percent of the vacancies available for promotion in such posts in which the percentage of promotion is 33 1/3 or more as specified in the Schedule II, shall be reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes respectively who are eligible for promotion in accordance with the provisions of rule 14.

(4) The procedure for promotion to the reserved vacancies shall be in accordance with the instruction issued by the <ORG> in <ORG> from time to time."

"14. Conditions of eligibility for promotion.- subject to the provisions of sub-rule (2), the <ORG> shall, consider the cases of all those persons, who, on the first day of January of that year had completed service of such number of years, whether in officiating or substantive capacity, on the post from which promotion is to be made as specified in column (3) of Schedule IV and are within the zone of consideration in accordance with the provisions of sub-rule (2): Provided that the services of the released officers of <ORG> and <ORG> after their appointment in the service, shall be counted from the date from which, they have been deemed to have been appointed in the service in accordance with the General Administration Deptt. Memo No. 2266/1987/1 (3) 67 dt. the 21st October, 1967.

Provided further that under this rule no junior person shall be considered for Select Grade Promotion in Preference to the person senior to him merely on the basis of his completing the proscribed service.

92) The field of selection shall ordinarily be limited to seven times of the number of officers to be included in the select list in respect of posts to be filled on the basis of "merit-cum-seniority" and five times the number of officers to be included in the select list in respect of posts to be filled on the basis of "seniority-cum-merit"; Provided that if required number of suitable officers are not available in the field so determined, the field may be enlarged to the extent considered necessary by the committee by mentioning the reasons in writing".

15. Rule 15 provides for the preparation of a list of officers found suitable for promotion. Rule 16 requires this list to be sent to the <ORG> for approval. Once the list is approved by the <ORG>, it becomes the Select List contemplated by Rule 17. rule 18 provides that appointment to the service shall be made from the Select List and in making appointment of the officers included in the Select List, the order in which their names appear in the select List shall be strictly adhered to except as otherwise provided in the Provision to Sub-rule (1) of Rule

18. Since Rule 14 which sets out the conditions of eligibility for promotion specifically refers to Schedule IV for purposes of indicating the number of years of service which should have been completed by the officer concerned in order to be eligible for promotion, the relevant provisions of Schedule IV are reproduced below:-

"SCHEDULE IV (See Rule 13)

----------------------------------------------------------------- Name of the Name of the Minimum Name of the Name of the Department Service or experience service or Members of post from for post to the which eligibility which Departmental promotion Promotion promotion is to be is to be Committee made made (1) (2) (3) (4) (5)

Man Power The Madhya Planning Pradesh Depart- Industrial ment Training (Gazetted Service ........... ......... ..... ........... ........... ......... ..... ........... Principal 3 years Dy. Appren- Director, Class II ticeship Employ- Adviser ment and (junior) Training, Principal, Madhya class I Pradesh Member Group Inst- 3 years Principal ructor/ Class II Technical Assistant /Jr. Adviser, Appren- ticeship/Mill Wright Forman/ Superintendent, Training provided that they possess the technical and educational qualifications specified in Column(5) of Schedule III. Group 10 year Vice- Instructor/ Principal Technical Assistant/ Junior Adviser Apprenticeship /Mill Wright Foreman/ Superintendent, Technical, not possessing Diploma/ Degree ........ .... ............

16. It is thus specifically mentioned in Schedule IV that Group Instructor/Technical Assistant/Junior Advisor Etc. Who have completed 3 years of service would be eligible for promotion to the post of principal, Class II. the requirement does not stop here. It proceeds further to say, "provided they possess the technical and educational qualification specified in Column (5) of Schedule III". Reading Rules 13 and 14 along with schedule IV as also column (5) of Schedule III, it becomes apparent that in order to be eligible for promotion to the post of principal, Class II, the officer concerned should not only have put in 3 years of service but should also possess the technical and educational qualification set out in Column (5) of schedule III, namely, that they should have either a Degree or Diploma in Engineering. Column (5) of Schedule III which prescribes educational qualifications for direct recruitment thus becomes a part of Schedule IV on the principles of "legislations by reference or incorporation." These qualifications will, therefore, be applicable not only to direct recruitment but also to promotions .

17. Schedule IV also indicates that Group Instructor/Technical Assistant/Junior Adviser Apprenticeship/Mill Wright Foreman, Superintendent, Technical who do not possess Degree or Diploma in Engineering will be eligible only for promotion to the post of Vice-principal provided that they have put in 10 years of service.

18. Thus, the Rules specifically provide for promotion of both the groups, namely, those who hold the Degree or Diploma in Engineering and those who do not possess this qualification. Those who possess Degree or Diploma in Engineering can be promoted to the post of Principal, Class II and other higher posts indicated Schedule IV while those who do not possess such Degree or Diploma can be promoted only up to the post of vice-principal.

19. Admittedly, the respondent does not possess either a Degree or Diploma in Engineering. He possesses Diploma in Craft and consequently was not eligible for promotion to the post of principal, Class II or Class I.

20. The <ORG> failed to notice the relevant provisions of the Service Rules in their true perspective and proceeded to allow the claim of the respondent on an erroneous view that the requirement of possessing a Degree or diploma cannot be applied to appointments by way of promotion.

21. The post of Principal whether it is of Class II or Class I is a post of higher responsibilities. The administrative qualities are mixed and blended with the academic achievements of the candidates and, therefore, it has been specifically provided in the Rules, specially the Schedule appended thereto, that the candidates, whether they are to be appointed by direct recruitment or by promotion, must possess a Degree or Diploma in Engineering.

22. Learned counsel for the respondent contended that since he had already been promoted to the post of principal, Class II and was also placed on the post of principal, Class I before the promulgation of the Rules, his promotion as Principal cannot be disturbed. It is contended that the Rules would apply to a situation where the post was lying vacant and was intended to be filled up after the promulgation of the Rules. It is also contended that having worked on the post of Principal since 1976, he cannot be shifted to the post of Vice-Principal after such a long period of dedicated service on the higher post. These contentions are devoid of merit.

23. It is not disputed that the respondent was promoted to the post of Principal, Class II for a short period of six months or till the availability of candidates duly selected by the commission, whichever was earlier. It is also not disputed and the <ORG> itself has found it as a fact that the respondent was placed on the post of principal only in an ad hoc capacity. Consequently, the post, having not been filled up on a regular basis in accordance with the Rules, was rightly treated by the appellant to be vacant. That being so, the respondent had only ad hoc status which he would continue to hold till it was altered by the appointing authority.

24. Government service is essentially a matter of status rather than a contract. A Constitution Bench of this Court in <NAME> Vs. Union of India (1968) 1 SCR 185 had observed as under:

" It is true that the origin of <ORG> service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the <ORG> servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the <ORG>. In other words, the legal position of a <ORG> servant is more one of status than of contract. The hall-mark of status is the and duties imposed by the public law and not by mere emolument of the <ORG> servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the <ORG> without the consent of the employee. It is true that Art, 311 imposes constitutional restorations upon the power of removal granted to the President and the Governor under Art, 310. But it is obvious that the relationship between the <ORG> and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature off status.

It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.

25. These observations were quoted with approval by another Constitution Bench in <CITATION> , AIR 1985 SC 1416 = 1985 (3) SCC 398 = (1985) Suppl 2 SCR 131. A 9- judge Bench in <CITATION> . AIR 1991 SC 101 = 1991 (Supp.1) SCC 600 = (1990) Supp. 1 SCR 142 also approved the principles laid down in <NAME> case (supra) that the legal relationship between the <ORG> and its servants is something entirely different. It is much more than a purely contractual relationship and is in the nature of 'status'.

26. Whether a persons holds a particular pos in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status . It all depends upon the terms of appointment. It is not open to any <ORG> employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation, it is not open to any <ORG> employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service.

27. Applying these principles to the instant case, since the respondent, admittedly, was appointed in an ad hoc capacity, he would continue to hold the post in question in that capacity. On the promulgation of Rules, therefore, the post of Principal which he was holding could not be treated to have been filled up on regular basis and had to be treated as vacant. In order to make regular appointment by promotion on that post, the eligible candidates were considered and the respondent, not possessing the required educational qualification, was not found fit or suitable for the post of principal and was consequently directed to the appointed on regular basis as Vice-principal as he was found suitable only for that post principally for the reason that he did not possess a Degree or Diploma in Engineering.

28. It is next contended by the learned counsel for the respondent that although the respondent does not possess a Degree or Diploma in Engineering, he has been working on the post of principal for a long time and since he has acquired sufficient experience on the post he need not, in the circumstances, be disturbed by reverting him as Vice Principal. This plea is also without merits.

29. Rule 8(2), which provides for Educational qualification, is in mandatory terms and it is mentioned therein that "the candidates must possess the educational qualification prescribed for the service as shown in Schedule III." In column 2 of Schedule III, the posts of Principal Class I and principal Class II are mentioned and in column 5 thereof, it is again mentioned in mandatory terms that "the candidates must possess a Degree in Engineering from any recognised <ORG> or must possess a Diploma in engineering from any recognised <ORG> or <ORG> along with five years' experience of working in any Training Institute or in any reputed business concern."

30. We have already held above that educational qualifications mentioned in column 5 of Schedule III for the post of Principal class I or Principal class II are also applicable to appointments by promotion and that the applicability of column 5 of Schedule III is not restricted to direct appointments. In this situation, therefore, before a person is eligible for being promoted to the post of Principle class II or Principal Class I, he must possess a Degree or Diploma in Engineering.

31. The plea that the <ORG> should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the <ORG>s are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification. The <ORG>s as also the <ORG> have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications. should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the Statutory provisions made by the <ORG> under Article 309 of the Constitution.

32. " Experience" gained by the respondent on account of his working on the post in question for over a decade cannot be equated with Educational Qualifications required to be possessed by a candidate as a condition of eligibility for promotion to higher posts. If the <ORG>, in exercise of its executive power, has created certain posts, it is for it to prescribe the mode of appointment or the qualifications which have to be possessed by the candidates before they are appointed on those posts. The qualifications would naturally vary with the nature of posts or the service created by the <ORG>.

33. The post in question is the post of Principal of <ORG>. The Government has prescribed a Degree or Diploma in Engineering as the essential qualification of this post. No one who does not possess this qualification can be appointed on this post. The educational qualification has direct nexus with the nature of the post. The principal may also have an occasion to take classes and teach the students. A person who does not hold either a Degree or Diploma in Engineering cannot possibly teach the students of <ORG> the technicalities of the subject of Engineering and its various branches.

34. The respondent having worked in an ad hoc capacity on the post of principal might have gained some administrative experience but the same cannot be treated as equivalent to his knowledge in the field of Engineering. A compounder, sitting for a considerably long time with a Doctor practicing in Modern medicine, may have gained some experience by observing the medicine prescribed by the Doctor for various diseases or ailments but that does not mean that he, by that process, acquires knowledge of the Human Anatomy or Physiology or the principles of pharmacology or the field of action of any particular medicine or its side effects. The Compounder cannot, merely on the basis of experience, claim a post meant exclusively for persons having MBBS or other higher degrees in medicine or surgery. The plea of experience, therefore, must fail. Moreover, this would amount to a relaxation of Rule relating to educational qualification. Power to relax the Rule vests exclusively in the Governor as provided by Rule 21. This power cannot be usurped by the <ORG> or the <ORG>.

35. For the reasons stated above, the appeals are allowed, the judgment and order dated 19.4.1994 passed by <ORG> is set aside and the claim petition of the respondent is dismissed but without any order as to costs.


JUDGMENT <NAME>, J.

1. The facts are set out in the judgment proposed by my brother <NAME>.

2. The question is whether plain glass bangles and ornamented glass bangles are to be regarded as essentially the same commercial commodity or can they be considered as two distinct, commercial commodities.

3. Glass bangles constitute a commodity which is well known. They may be plain or cut or ornamented. They are manufactured in their plain state. With some processing indentations are cut into plain bangles, and they lake the appearance of cut glass bangles. The indentations may be filled with liquid gold to give the bangles an ornamented appearance. In each case what is done is to put the glass bangles through a further process. The consequence of the processing is to give a slightly different appearance to the surface of the glass bangles. Essentially, the glass bangle continues to be the same article. The processing does not result in the emergence of a new commercial commodity and it cannot be said that it amounts to manufacture. There is a distinction between mere processing and manufacture, and the distinction was brought out by <ORG> in <CITATION> A.I.R. 1963 S.C. 791 in the following words :

According to the learned counsel 'manufacture' is complete as soon as by the application of one or more processes, the raw material undergoes some change. To say this is to equate 'processing' to 'manufacture' and for this we can find no warrant in law. The word 'manufacture' used as a verb is generally understood to mean as 'bringing into existence a new substance' and does not mean merely 'to produce some change in a substance', however minor in consequence the change may be. This distinction is well brought about in a passage thus quoted in Permanent Edition of Words and Phrases, Volume 26, from an American judgment. The passage runs thus :

Manufacture" implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something -more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use.'

4. The processing to which the glass bangles are subjected may conceivably result in different varieties of glass bangles, but I am unable to say that as between themselves each variety can be considered as a distinct commercial commodity. Different names may perhaps be given for the purpose of distinguishing one variety from another, but whether they are plain glass bangles or ornamented glass bangles their character and use remains the same. That character and use is not affected by the superficial change in appearance from plain bangles to ornamented glass bangles. I might refer to the observations in <CITATION>  22 S.T.C. 160, where it was said :

...when a process is adopted for convenience of sale or making the article more acceptable to the customers, if the article in question retains its essential character, it has to be taxed as such article only and the processing would make no difference. The physical state or even the composition may change but so long as the essential character of the article continues to remain the same, it has to be taxed as that commodity alone.

5. I need not refer to the other cases cited before us because, in my opinion, it is perhaps possible to say that the question in some of those cases arose in a somewhat different context.

6. As regards the material on the record before us, I am unable to discover anything there which supports the case of the respondents that plain glass bangles and ornamented glass bangles are distinct commercial commodities.

7. In my judgment, glass bangles, being a single commercial commodity, cannot be taxed twice by a notification under Section 3-A of the U.P. Sales Tax Act. On that ground alone, I hold that Notification No. ST-471/X-900-(45)/1965, dated 1st February, 1966, is ultra vires.

8. In the result, the petition is allowed. A writ in the nature of certiorari shall issue quashing the assessment order dated 18th November, 1966, made against the petitioner for the assessment year 1965-66. There is no order as to costs.

<NAME>, J.

9. This petition under Article 226 of the Constitution is directed against an assessment order under the U. P. Sales Tax Act (hereinafter referred to as "the Act").

10. The petitioner which is a partnership firm is a dealer in glass bangles at Firozabad. Amongst other varieties of bangles it deals in a variety called the ornamented glass bangles. It buys glass bangles in plain form from glass factories at Firozabad and sells them after subjecting them to a process of ornamentation.

11. Prior to the assessment year 1965-66 glass bangles were a single point taxable commodity, the turnover whereof was taxable in the hands of the manufacturers or importers (We are not concerned in this case with importers). On 1st February, 1966, <ORG> issued a notification under Section 3-A of the Act being Notification No. 471/X-900(45)-65 which contained two separate entries, one relating to plain glass bangles and the other to ornamented glass bangles. The turnover of both the varieties of glass bangles was made taxable at 7 paise per rupee. The point of sale in the former variety was the sale by the manufacturer while in the case of the latter variety it was the sale by the ornamentor. Under this notification sales tax was levied upon the petitioner in respect of the assessment year 1965-66 for the period 1st February, 1966, to 31st March, 1966, and similarly for subsequent assessment year 1966-67 the tax was levied on the petitioner's turnover of ornamented glass bangles, treating it to be the ornamentor. The petitioner has challenged the assessment order for the assessment year 1965-66 by means of this writ petition on the ground that the notification referred to above is ultra vires.

12. It is contended that the ornamented and plain glass bangles are in reality one and the same commodity and their turnover cannot be subjected to tax twice-once in the hands of the manufacturer and again in the hands of the ornamentor-as has been sought to be done under the impugned notification. It is further contended that the aggregate tax upon the turnover of glass bangles would come to 14% which would exceed the maximum rate prescribed under Section 3-A which at the material time was 10% only.

13. Before examining this contention it is necessary to state that although the petitioner had filed an appeal against the impugned assessment, yet his contention relating to the vires of the notification was not adjudicated upon by the appellate authority in view of the decision of <ORG> in <CITATION> 60 I.T.R. 260, where <ORG> held that the sales tax authorities had no jurisdiction to adjudicate upon the validity of any provision or notification of the Sales Tax Act . The alternative remedy provided in the Act not being efficacious, this is a fit case in which the petitioner should be allowed to invoke the writ jurisdiction of this court.

14. According to the scheme of the Act, the turnover of every commodity is taxable at all points of sale at a uniform rate prescribed under the charging Section 3 which at the material time was three pies per rupee. <CITATION> is an exception to the charging section inasmuch as it authorises <ORG> to levy tax at a rate different from the one prescribed in Section 3 and to restrict the levy to one sale in the series of sales. <CITATION> provides :

3-A. (1) Notwithstanding anything contained in Section 3 , <ORG> may, by notification in the official <ORG>, declare that the turnover in respect of any goods or class of goods shall not be liable: to tax except at such single point in the series of sales by successive dealers as <ORG> may specify.

(2) If the State Government makes a declaration under Sub-section (1), it may further declare that the turnover in respect of such goods shall be liable to tax at such rate not exceeding ten naye paise per rupee as may be specified...

15. Obviously the power of <ORG> under <CITATION> is-restricted to certain goods or class of goods. The turnover of same goods or goods belonging to the same class cannot be subjected to tax under <CITATION> more than once by introducing an artificial classification. If the plain bangles and ornamented glass bangles are not different goods or do not belong to different classes of goods, they cannot be made the subject of a charge separately. The short question which, therefore, arises is whether plain glass bangles and ornamented glass bangles are two different kinds of goods or belong to the same class of goods.

16. It may be mentioned here that it was on the 8th of June, 1948, that glass bangles were included for the first time in <CITATION> by means of Notification No. S.T. 117/X-923-1948. Entry No. 15 of the Schedule attached to that notification was "glass bangles". The point of tax was the sale by the manufacturer or the importer depending upon as to whether bangles were manufactured inside Uttar Pradesh or were imported from outside Uttar Pradesh and the rate of tax was six pies per rupee. There was no separate entry relating to ornamented glass bangles so that all varieties of glass bangles were comprehended within entry No. 15. On the 30th March, 1949, the entry "glass bangles" was deleted from the abovementioned notification of 8th June, 1948. But later on glass bangles were once again brought into the ambit of <CITATION> and by various notifications issued from time to time the rate of tax on the turnover of glass bangles was progressively increased until it was fixed at 7 Np. per rupee under a notification dated 1st December, 1962. In all these notifications glass bangles continued to appear under a single entry representing one class of goods. It is only on 1st February, 1966, that the impugned notification was issued which, as mentioned earlier, split the entry relating to glass bangles into two separate entries, viz., plain glass bangles and ornamented glass bangles. The rate of tax on the turnover of each variety was fixed at 7 paise per rupee.

17. Admittedly the petitioner is not a manufacturer of glass bangles. He purchases plain bangles at Firozabad and carries out the process of ornamentation. The onus lay upon the sales tax authorities to show that glass bangles after ornamentation become a different commercial commodity or a different class of goods. On the record before us I do not find any such material. It has not been shown that glass bangles after undergoing the process of ornamentation cease to remain glass bangles or become a different commercial commodity. On the other hand, the petitioner has appended with its rejoinder-affidavit the samples of plain, cut and ornamented glass bangles. It has not been asserted on behalf of the <ORG> that the samples of ornamented glass bangles appended to the affidavit of the petitioner are not the type of bangles that are dealt in by the petition. I find that the ornamentation is nothing but slight painting in liquid gold on the outer surface of the glass bangles. The ornamented glass bangles do not look materially different from plain or cut glass bangles.

18. It is also not the contention of the opposite parties that the process of ornamentation is a process of manufacture and I am of the firm opinion that the application of liquid gold on the outer surface of bangles cannot be called a process of manufacture. The ornamentation may at best be called processing and there is a well-recognised distinction between the two.

19. <CITATION> A.I.R. 1963 S.C. 791, <ORG> brought out the distinction between "manufacture" and "processing" in the following words :

Manufacture" implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use.

20. The same distinction has recently been brought but by <ORG> in <CITATION>  22 S.T.C. 160, where it was held:

21. Reference in this connection may also be made to another case of <ORG> in <CITATION>  17 S.T.C. 313, where the dealer concerned converted scrap iron-purchased locally and imported-into bars, flats and plates which he sold in the market. The dealer claimed that what he sold was nothing else but iron and steel which was a commodity exempt from sales tax. The revenue sought to impose tax on the ground that what the dealer sold fell within the description "goods prepared from any metal". <ORG> held that what the dealer purchased was iron and what he sold was also iron and the conversion of the raw material (iron) into bars, flats and plates did not alter the character of the commodity.

22. A similar view was expressed by <ORG> in <CITATION>  11 S.T.C. 827, where the question was as to whether hydrogenated groundnut oil (popularly known as Vanaspati) was a commodity different from the groundnut oil. Vanaspati is manufactured from groundnut oil by a chemical process known as hydrogenation. This process brings about an intermolecular change which results in the hardening of the oil. <ORG> held that notwithstanding the intermolecular change the commodity continued to be the same as it was before undergoing the process of hydogenation.

23. <CITATION>  19 S.T.C. 24, <ORG> held that patasa, harda and alchidana were all included in the term "sugar" which included within its ambit all forms of sugar, that is to say, sugar of any shape, texture, colour or density and by whatever name called.

24. Yet another test was laid down by <ORG> to determine a question like the one before us in the case of <ORG> [1960] 11 S.T.C. 827. It was observed by their Lordships at page 835 :

There is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could be put for which the raw oil could not be used. Similarly we consider that hydrogenated oil still continues to be 'groundnut oil' notwithstanding the processing which is merely for the purpose of rendering the oil more stable.

25. On this authority of <ORG> it can safely be said in the instant case that ornamentation of glass bangles merely results in bringing into existence a different variety of glass bangles, but not a commercially different commodity. The use to which glass bangles are put in this country is well known. They are primarily worn by womenfolk as an article of personal decoration. All varieties of glass bangles be they plain, coloured or ornamented serve the same purpose.

26. As a result of the foregoing discussion I am of opinion that ornamented glass bangles cannot be regarded as a commodity distinct and apart from plain glass bangles for the purposes of <CITATION> of the Act. They are merely two varieties of glass bangles and the distinction sought to be made by the <ORG>, in the impugned notification is artificial and is, therefore, unauthorised. In the circumstances I must hold that the impugned notification is ultra vires being beyond the ambit of <CITATION> of the Act.

27. I, therefore, allow the writ petition, declare the impugned notification to be ultra vires and issue a writ of ceriiorari quashing the assessment order for the year 1965-66. In the circumstances, however, I would make no order as to costs.

By the court

28. The petition is allowed. A writ in the nature of ceriiorari shall issue quashing the assessment order dated 18th November, 1966, made against the petitioner for the assessment year 1965-66. There is no order as to costs.


JUDGMENT <NAME>, J.

1. The parties to these appeals invite the <ORG> to evaluate life, which is priceless, by the negative device of assessing the loss inflicted by death on those who lived on the deceased's longevity. In this mundane world, even the irreparable can be repaired somewhat by money and the law computes compensation for loss of life as "a hard matter of pounds, shillings and pence", based not on "sentimental damage, bereavement or pain or suffering" but on "a reasonable expectation of pecuniary benefit as of right or otherwise, from the continuance of the life".

2. A stage carriage, belonging to the 1st defendant-company, was plying, with lethal rashness, on the Vypeen-Pallipuram road on the ill-starred day, the 12th December, 1959. This lovely island has but rugged roads and the working-class denizens, who make a livelihood by employment outside the island, depend largely on buses for their daily journeys. Three such workmen by name <NAME>, <NAME> and <NAME>, all employed in <ORG>, were on their way to their work-place in the morning that day. According to the plaintiffs, the 1st defendant's overloaded bus, propelled recklessly by its driver, barged against a 'waterpipe pillar,' turned turtle and, as a result, several persons sustained serious injuries of whom the three men later succumbed to their injuries and died. All the three were the breadwinners of their poor families and on their death the dependants were cut adrift and so, they claimed compensation under the Fatal Accidents Act , Act 13 of 1855 --for short, called the Act --by way of pauper suits, which were duly resisted by the owner of the bus, the 1st defendant company, both regarding culpability and quantum of compensation. <ORG> overruled the pleas of the defendant on both heads and decreed damages to each set of defendants in substantial sums of Rs. 13,110 in O.S. No. 20 of 1955 of <ORG>, Ernakulam (O.S. No. 46 of 1961 of <ORG>) (Chouro), of Rs. 21,040 in O.S. No. 21 of 1965 of <ORG>, Ernakulam O.S. No. 48 of 1961 of <ORG> (Sylvian) and of Rs. 23,001 in O.S. No. 22 of 1965 of <ORG>, Ernakulam (O.S. No. 47 of 1961 of <ORG>) (Raphael). The owner of the bus, held vicariously liable by the Court below, has come up in appeal challenging the decree, by raising contentions, frivolous and serious, in a desparate effort, may be, to escape all liability under the Act. The recklessness of the driving is matched only by the recklessness of his pleas about culpability. For instance, in his written statement, the mishap is blamed on the bad condition of the road and in the appeal memorandum an audacious but confessional contention of volenti non fit injuria is seen raised. The dangerous and treacherous state of Vypeen roads, it is pleaded, almost induces accidents. If that be so and perhaps it is Government is lucky that few people are conscious of their right to claim damages from it where the injury is reasonably occasioned by its misfeasance. However, such lamentable neglect of the maintainance of the highway must make a prudent motorist, driving in broad day light on a familiar route, more circumspect and it can never be an excuse for releasing him from legal duty to take care. The greater the danger, the greater the care, should be the guideline of the motorist. In this case, the evidence is clear, and the circumstances speak for themselves, that the 'fifth act' of the tragic drama which took the toll of three lives was brought about by the gross negligence of the driver. The defendant has taken up a ground in appeal that the plaintiffs should be non-suited on the principle of volenti non fit injuria. Scienti and therefore volenti may, perhaps, be the basis of the argument. In other words, the plea of the owner is that the reckless driving of his buses is so chronic and notorious that any one who steps into them must be deemed knowingly and willingly to be walking into a death-trapl Now that the plea has been unhesitatingly abandoned by counsel who realised the implication, I can only remark "Father, forgive them, for they know not what they do". This preposterous plea of the operator is perhaps bottomed upon the painful phenomena frequently found in Kerala of bad roads, absence of effective cautionary signals and safety measures, frequent and callous violation of traffic regulations and failure of concerned authorities to take prophylactic action against recurrence, at least after major road tragedies, thanks to the anaesthetised attitude of the public and government to road safety. But I have no doubt that the negligence of the defendant's driver is the causa causans of the accident under consideration.

In fairness to counsel for the appellant, it must be said that, at the time of arguments, he did but feebly challenge his client's liability. However, he rightly stressed his case that the quantum of compensation award-able under the Act was far less than the excessive award made by <ORG> and on this part of the case we found consideraable force in his submission.

3. All the three suits have been tried together and a common judgment has been delivered, since the claims spring from the same accident. But we find a curious and indefensible procedure in drawing up a common decree for all the three suits; each suit must have a separate decree and even where there is a joint trial there cannot be 11 joint decree. The Fatal Accidents Act , placed on the statute book as early as 1855, is a trifle archaic in form and somewhat obsolescent in content, but Courts are called upon to enforce the statute as it is. Under the Indian Act , which is largely modelled on the English statute of 1846, brothers and sisters are not entitled to rank as dependants, although in England, the mother country (I mean, of the statute), by Section 2 of the Fatal Accidents Act, 1959, brother, sister, uncle and aunt of the deceased and the issue of such relatives have been inducted into the area of statutory dependency. The other progressive amenaments to the English statute also have not been copied in our country. In one of the three suits we are concerned with viz., O.S. No. 22 of 1965, plaintiffs 3, 4 and 5 are the two brothers and sister of the deceased who, under the Indian Act , are not entitled to claim compensation. Again, the Fatal Accidents Act , 1855, states that "every such action or suit shall be for benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased". The Act also requires all the dependants to be named in the plaint. What happens, if all these dependants are not on record, although they are alive or the suit is brought by some but not for the benefit of the others also ?

Strictly speaking, the section visualises some sort of a representative action, but, where the suit is brought, not by the executor or administrator, but by some of the beneficiaries themselves, should the suit be dismissed because the others are not on record ? That would be taking an extremely technical view and therefore an objection in that form, taken in two suits where the parents are alive, but not impleaded (nor claim made on their behalf), has been rightly overruled by <ORG>, although that does not mean that the plaintiffs should get the benefit of the compensation which should have gone to the parents had they also claimed.

There was evidence led regarding funeral expenses, presumably on the footing that a claim could be put forward in that behalf; but the Indian Act does not provide for it, while the amended English Act provides for award of damages in respect of the funeral expenses of the deceased if such expenses have been incurred by the parties for whoso benefit the action is brought. In India the reasoning in <NAME> v. S.E. <NAME>., (1858) 4 CB (N.S.) 296 still holds good that "the subject-matter of the statute is compensation for injury by reason of the relative not being alive" which is a narrower concept than compensation for injury by reason of a relative's death. The former embraces only what the deceased had he lived, would have done for the dependant; the latter includes in addition to this what the dependant would do and does, reasonably and necessarily, for the deceased as a result of his death, such as a son's expenses of travelling thousands of miles by air to his father's funeral, or a wife's expenses dealing with personal correspondence of sympathy and condolence on her Husband's death" (Mayne's Damages, 12th Edition page 689, para 810).

4. We are, therefore, concerned only with assessing the amount of damages awardable to such of the plaintiffs as come within die scope of Section 1-A of the Act, measured by the loss occasioned to them by the death of the one on whom they depended, although a claim under Section 2 of the Act, available to the legal representatives by way of loss caused to the estate of the deceased, has not been put forward, by a serious omission in the pleading. Facts material to issue under Section 1-A are set out below:

A. S. No. 404 of 1966 O. S. 20 / 1965

1. Name of the deceased:

<NAME> -- Aged 45

2. Relatives specified in Section (1) (a) who figure as plaintiffs:

1. Widow -- Thachamma -- aged 35

2. Son -- Antony -- aged 14

3. Daughter -- <NAME> -- aged 12

4. Son -- <NAME> -- aged 9

3. Relatives not specified in Sec. 1 (a)but figuring as plaintiffs:

<NAME>

4. Relatives specified in Section 1 (a) but not figuring as plaintiffs:

Father and mother of the deceased 4 (a). Relatives not specified in Section 1 (a) who were dependants of the deceased:

2 Brothers and 2 sisters (P. W. 1page 4)

5. The age of each relation who is plaintiff:

1. Widow -- 35 years

2. Son -- 14 years

3. Daughter -- 12 years

4. Son -- 9 years

6. The longevity in the region for persons of the respective ages of the relatives:

1. Widow -- 35 years -- 30.03

2. Son -- 14 years -- 43.01 at 15

3. Daughter -- 12 years -- 47.11 at 15

4. Son -- 9 years -- (about 50)

7. The average income of the deceased:

Rs. 1,552,01 gross per year

9. The multiplier to be adopted and the circumstances relevant to fixing the multiplier:

The evidence is that the deceased who was 45 years "could have worked in <ORG> upto his 60th year"

Decrease in multiplier due to:

1. for contingency of death of parties,

2. daughter getting married,

3. son getting employed and becoming independent of parents etc. A. S. No. 405 of 1966 O. S. 22 / 1965

1. Name of the deceased:

<NAME> -- aged 27 l

2. Relatives specified in Section 1 (a) who figure as plaintiffs:

1st Plaintiff: Father <NAME> -- aged 70 2nd Plaintiff Mother <NAME> -- aged 57

3. Relatives not specified in Sec. 1 (a) but figuring as plaintiffs:

3rd Plaintiff -- Brother Antony 4th Plaintiff -- Sister Divind 5th Plaintiff -- Sister Annamma Ni

Nil 4(a). Relatives not specified in Sec. 1 (a) who were dependants of the deceased:

3rd, 4th and 5th plaintiffs (brother and sinters)

5. The age of each relative who is plaintiff:

1. Father -- Aged 702. Mother -- aged 573. Brother -- Aged 234. Sister -- aged 195. Sister -- aged 16

6. The longevity in the region for persons of the respective ages of the relatives Father -- aged 70 -- <NAME> died on 28-1-1968Mother -- aged 57 -- 14.34 at 60

7. The average income of the deceased:

Rs. 1,424.34 gross per year

The evidence is that the deceased aged 27 could have worked up to 60thyear, i.e., 33 years Decrease in multiplier due to.:

1. Contingency of the death of parties including the dependants,

2. Deceased likely to get married,

3. Benefit accrued to the dependants due to death of deceased (Plaintiffs 1 and 2 alone are entitled for damages)1st plaintiff died on 28-1-68, i.e., 8 yrs. after the death of his son. He wasaged 70.

Mother aged 57 A. S. No. 406 of 1966 O. S. 21 / 1965

1. Name of the deceased:

<NAME> -- aged 40

Plaintiffs

1. Widow <NAME> -- aged 24

2. Son -- Joseph -- aged 6

3. Daughter <NAME> -- aged 4

4. Daughter <NAME> -- aged 1

3. Relatives not specified in Section 1 (a) but figuring as plaintiffs:

<NAME>

4. Relatives specified in Section 1 (a) but not figuring as plaintiffs:

Mother of the deceased 4(a) Relatives not specified in Sec. 1 (a) who were dependants of the deceased:

One brother and 2 sisters who were residing with the deceased

1. Widow -- aged 24

2. Son -- aged 6

3. Daughter -- aged 4

4. Daughter

-- aged 1

6. The longevity in the region for persons of the respective ages of the relatives.

Widow -- - 24 years -- 38.11 at 25 died 28-3-1968 Son -- 6 years -- 50.80 at 5 Daughter -- 4 years 55.33 at 5

7. The average income of the deceased:

Daughter -- 1 year -- 55.78 Rs. 1, 679.12 Gross per year.

As in the case of A. S. 404 / 66 taking into account the decrease in multiplier.

1st Plaintiff widow died on 28-3-1968 2nd Plaintiff son, aged 6.

3rd Plaintiff daughter, aged 4.

4th Plaintiff daughter, aged 1.

5. How do we ascertain the loss of the pecuniary benefit arising from the relationship, which would have been derived from the continuance of the life and which may consist of money, property or services: in other words, the value of the dependency ? This amount would depend largely upon how long the deceased would have lived and earned, had he not been killed by the accident and how long the dependants would live; in other words, on how long the dependency would last ? What would the deceased have contributed, on an average, to the dependant's well-being over the years; in other words, what is the basic figure ? In a world where imponderable forces operate and unexpected changes occur, a peep into the future and prediction with precision of things dependant on varying human and social factors, may be cynically called an exercise in the art of pretense. In such an uncertain situation, Judges can only make intelligent guesses grounding themselves on existing realities, general probabilities and broad trends, making allowance for individual factors and freak possibilities. That is why the golden rule of 'reasonable expectations' has been accepted by Courts for want of a better. Standardised methods have also been devised for calculating the value of the dependency or the present value of the pecuniary benefit that the deceased would have conferred upon the dependant in the future. The annual value of the dependency is first arrived at, i.e., the basic figure, and this is multiplied by the number of years the dependency is expected to last, called the multiplier and the product is scaled down to reach the present value, because when a lump sum is being given, two considerations must weigh with us.

The compensation packet is not what the dependant gets if his prop were alive. Had he been alive, he would have given various small sums over the months and the years and to-pay the aggregate in one lump is to help the dependant benefit by the death! Similarly, there are contingencies which might cut off the benefit prematurely. The formula works this way in practice. Estimate the average income of the deceased (I am ignoring the cases where the deceased has not begun to earn, although in such cases prospective earning and therefore prospective loss can be taken into account), take the various expenditure factors affecting the individual, from the point of view of his own habits, family circumstances and social conditions and derive, after appropriate deductions, the normal contribution that the deceased was making, about the time of the accident, in favour of the dependant in a year. This is the basic datum viz., the annual value of the dependency. This is not very scientific because this annual figure may vary from time to time and for a number of reasons but effect is given to these uncertainties while choosing the multiplier, as is the practice in <ORG>. The defence of this forensic procedure is not that it is the most rational but that it is the most practical in drawing up the balance-sheet based on a maze of factors.

A familier quotation in this branch of the law is to be found in Lord <NAME>'s speech in <NAME> v. <ORG>, 1942 AC 601, dealing with the case of the death of a working husband. He said:

"The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt."

The expectation of life, not merely of the deceased, but also of the dependant, is a matter to be taken into account, particularly when we are dealing with aged parents as dependants, for e.g., in O.S. No. 48 of 1961. Bad health certainly may affect expectation of a particular life; hazardous employment of another and so on. Fortunately, in this case we are not called upon to consider these variables as no evidence has been led on those lines. Similarly, the prospect of marriage of the deceased or the dependant has an important impact on the issue. Unmarried <NAME>, the deceased, was just 27, an extremely marriageable age. The widow of <NAME> was in her twenties, still a vernal age when the prospect of a re-marriage is not pale. Among the many matters urged on this part of the case, there is one which has been the subject of much debate. The widow of <NAME> had actually died when the appeal in this <ORG> was pending and so counsel for the appellant contended that we are not in order in assuming a notional longevity for her, confronted as we were with the stark fact of her death. Not so important; yet <NAME>'s aged father also died during the pendency of the appeal. The argument is that the dependency snaps when the beneficiary dies and when that has happened, speculation about it is silenced. But the matter is not that easy of solution. Damages begin to run from the time of the death of the victim of the fatal accident and are, therefore, normally assessed in relation to the facts then existing. Yet, subsequent events surely must be taken into account when they throw light on the actualities of the case, and the latest data should be made available to the <ORG> at the time of the trial. Logically, therefore, if one of the contingencies that would end the dependency, namely, the death of the dependant, has materialised before the trial, this must be taken into account and damages assessed accordingly.

<NAME>, <NAME>, observed in <NAME> v. <NAME>, 1940-2 KB 658:

"It is quite true that the measure of damages has to be assessed as at that date (i.e., the husband's death), but <ORG>s in assessing damages are entitled to inform their minds of circumstances which have arisen since the cause of action accrued and throw light upon the reality of the case. It seems to me wholly wrong to say that where a death which involves the liability of a third party has occurred, as in the case, some years before the assessment of damages by the <ORG>, the <ORG> ought to shut its eyes to the fact that one dependant has had only a short tenure of life before death put an end to her dependence."

Subsequent events may either augment or cut down the quantum of damages, but it is a moot point when they can be taken note of and if so, subject to what restrictions and conditions.

6. Every material event which affects the result of an action and occurs before the <ORG> take final leave of the lis should be taken into account, if the unreality gap between forensic findings and the facts of life is to be narrowed down and if dispensing justice is not to be confused with the cult of the occult. What would you think of a system of justice, when a <ORG> deliberates at length, hears long arguments, takes considerable evidence and holds that a plaintiff-claimant will have another fifty years' span of life even if an hour before this judicial astrology is articulated, the plaintiff dies of heart failure in the <ORG> hall ? Justice is blind ? I venture to suggest that justice is not, and ought not to be, blind to up-to-date facts, and Judges must see with their eyes and discern with their mind's eye to arrive at the truth. But there is another side to the question. On principle, a <ORG> grants relief as on the date of the plaint and, strictly speaking, even events occurring up to the close of the trial may be considered only in exceptional cases. For, a perfect administration of justice gives a decree at least immediately the two parties appear in <ORG> and all further protraction is often blamable on the 'law's delays'; similarly, it is quite conceivable that if the plaintiff has demanded only a prudent sum a sensible defendant may admit the claim.

And so, if a decree is passed on a reasonable estimate made by the plaintiff of the expectation of his life, the defendant consents to it and files no appeal, and some days later the claimant dies, can the defendant get the award of compensation upset on that ground or has he to accept it as a decree of fate what if the man lives longer ? If the decree can be amended on this ground, can it be done years later or on the score that other similar material factors have altered ? That would be introducing hobgoblins into the administration of law and un-doing finality of decisions for every Such illustrations bring home the necessity for drawing the line somewhere and the futility of endeavouring to avoid injustice by looking into later happenings --apart from procedural complications of pleading and evidence. But, all things considered, the compelling logic of <NAME>, L.J., persuades me to include in the judicial algebra all things that occur, beyond the control of the parties, up to the close of the trial. But, comes the argument, then why not events subsequent to <ORG> decree but precedent to the disposal of the appeal ? Can we not classify the death of a dependant in a fatal accident case as of such special significance as to pass the barrier of exclusion of events subsequent to the trial ? I am disposed to say 'yes'.

So long as there is a comprehensive legal proceeding pending, e.g., an appeal, in which the subject-matter of compensation is legitimately available for judicial scrutiny, light on the decisive facts, beyond the manipulation of parties, may be received and reliefs moulded accordingly. If no appeal is pending, you can't recall the verdict or seek review on account of later events. This may itself lead to anomalies. But our imperfect instruments have pragmatic limits in the search for perfection! The view I have taken can be justified by traditional judicial thought also, For brevity's sake, I shall refer to but one Full Bench decision of <ORG>, reported in <CITATION> , 1962 Ker LT 446 = (AIR 1962 Ker 341) (FB).

The learned Chief Justice observed in that case --which was one relating to the grant of a permit to one among many competing applicants, under the Motor Vehicles Act , having regard to development between the disposal by the <ORG> and the hearing of the appeal by the S.T.A.T.

"If the duty of <ORG> is to decide --as we think it is --whether <ORG> was wrong or not, it must naturally follow that the appellate decision must be on the basis of the facts and circumstances which formed the foundation of the order under appeal.

An appeal, no doubt, is in the nature of a rehearing. But that does not mean that it is in the nature of a fresh trial, with freedom to the parties to press into service every event that has occurred since the decision under appeal. All that an appellate power spells is a power to consider on the merits the decision of a lower <ORG> or tribunal.

There is of course a type of subsequent events which a Court of appeal has to take into account in moulding the relief to be granted: the death of a party, a change of law, AIR 1941 FC 5, a judgment in rem AIR 1957 SC 875. This is a restricted category, and all that we need say is that neither a qualification obtained on the basis of a permit subsequently set aside in appeal nor one acquired by an applicant's endeavours during the interval between the decision of <ORG> and the hearing before <ORG> should be taken into account as a subsequent event which is material for the disposal of an appeal."

The rule is that subsequent events cannot be considered at the appellate stage, since an appeal, though a continuation of the suit for purposes of hearing the entire matter, is not a continuation of the trial where fresh evidence can also be introduced. There are certain exceptions engrafted upon this rule, as pointed out by My Lord the Chief Justice. Such subsequent events must possess a decisive bearing on the issues in the case, must have occurred independently of the exertions of parties and must be such as would stultify the decree if not taken into account. I am inclined to the view that the death of a principal or sole dependant has a deadly effect on the compensation claimable in many cases and in such cases Courts will be in order in having due regard to them while deciding the appeal, provided the pleadings are got amended, the opposite party afforded an opportunity to answer and other procedural prescriptions complied with.

7. In the present case, this legal controversy cannot loom large, because where there are many dependants, all below the poverty line, as in this case, one or two deaths among them may not affect the gross sum set apart by the wage-earner for the family upkeep and, therefore, the compensation payable by the defendant, although inter se shares may be changed. In O.S. No. 48 of 1961 the death of the wife may be a material circumstance to reduce the budgetary provisions which the deceased would have made for the circle of dependants, but even this should not be exaggerated because he would have had to bring in some elderly lady to look after the children and incur extra expenditure on several small items which the presence of the wife might have obviated. Nor has any amendment of the pleading been sought at the appellate stage so as to enable the <ORG> to rely on the circumstance of death of the 1st plaintiff and the opposite party to rebut the intensity of its impact on the complex of compensation factors. Moreover, she died only after 10 years after <NAME>'s death and we are adopting not a much greater multiplier. The case of the 1st plaintiff in O.S. No. 22 of 1965 (<NAME>'s father) is no better because the multiplier adopted by us more or less accords with his death and neither party can have a grievance.

8. The table furnished earlier gives us approximately a gross annual income of Rupees 1,552/- for <NAME>, Rs. 1,679/- for <NAME> and of Rs. 1,425/- for <NAME>. There are many factors, material and minute, which affect the fixing up of the annual value of the dependency. While the learned Subordinate Judge has palpably erred in the matter of computation, the deduction he made on account of what would have been spent on the deceased himself being only the cost of transport and "outside meals" on working days, there is a broad fairness in adopting as the basic figure Rs. 800/- in the case of <NAME>, Rs. 850/- in the case of <NAME> and of Rs. 800/- in the case of <NAME>. While neither counsel wanted it to be understood that they accepted these figures they did not call them unfair, having due regard to the many factors which cannot be very clearly articulated but can certainly be felt and appreciated and were thoroughly examined at the hearing before us.

9. The real controversy rages round fixing the multiplier. A great deal of argument and reference to precedents has been our pleasure to listen to, but I am not much the wiser for all that because, essentially, this is a question which has to be resolved on the specific facts and circumstances of each case, the broad guidelines of judicial pronouncements being helpful only to a limited degree. In <NAME> v. <ORG>, 1 956-1 WLR 51 Singleton, L. J., observed:

"One point of law is raised, Mr. <NAME> .......... asked that he might be allowed to refer the judge to decisions of other judges and of this <ORG> in cases of a like nature in order to give some guidance as to the amount of damages which should be awarded. Mr. <NAME>, ........ objected to any such material being placed before the judge, and the judge, ....... gave judgment upon that question. He said -that Mr. <NAME> had referred him to the decision of this <ORG> in <NAME> v. <ORG>, 1953-1 QB 495 and in particular to certain words of <NAME>, <NAME>, J., said: 'As I understand the language, it is in main directed to a consideration of those cases in the <ORG> of Appeal, and, indeed, the language of <NAME>, L.J., in which he says 'when, therefore, a particular matter comes for review one of the questions is, how does this accord with the general run of assessments made over the years in comparable cases ?', is to my mind apt to indicate the practice in the <ORG> of Appeal itself ........ The Judge's decision is in these words; 'I do decide that in the circumstances it would not be right for me to permit Mr. <NAME> to refer to the quantum of damages awarded in similar cases. If I am wrong about that, he will be able to get the matter put right hereafter.' .......... The decision of the <ORG> of Appeal to which reference was made drew attention to the desirability of approaching, as far as possible, something in the nature of a standard in certain classes of injury so as to help judges of first instance as much as possible. No one knows what is the right sum of damages in any particular case, and no two cases are alike ...... I do not consider that a Judge is bound to hear such evidence fof compensation awarded in other comparable cases). If counsel on one side or the other tenders such evidence or such material, it is for the Judge to say whether, in his discretion, he thinks it will be of help to him or not ......

'The danger of such material is that it is apt to take the mind of the tribunal from the particular facts of the case on which it is to give a decision. It would not be right that a claim for damages for personal injuries should open by counsel for the plaintiff saying: 'My Lord, I have here fifteen decisions of Judges in the last five years upon an injury like this one,' say the loss of a leg; and for counsel on the other side to say: 'I have twenty-five similar decisions,' the one quoting the high ones and the other quoting the low ones. That would not be of help to any Judge. A Judge in assessing damages draws upon his own experience. Where does he get that experience ? From knowledge of other Judges decisions as to amount; from knowledge of what is said in this <ORG> and in <ORG>; and from his ordinary experience in life. It would not be wrong for counsel appearing in such a case to say to a Judge: 'I have here the report of a decision in the <ORG> of Appeal on an appeal on damages in a case very like this one; and I have another case, a decision of Mr. Justice <NAME>, a case again very like this one. Would your Lordship like to have them ? The Judge could not be wrong if he said: 'Yes, I should like that information, I should like to know what the <ORG> of Appeal said and I should like to know how Mr. Justice <NAME> dealt with this subject, for it is one of which no one has great experience."

In this context, I may also notice the observations of <ORG> in Dr. <NAME> v. <NAME>, AIR 1961 Punj 400. At page 463 their Lordships have observed:

"It may, however, not be forgotten that no case is exactly like another, nor is it possible to extract from decided cases any precise principle of law on this point. The "question of negligence in the present case is, as it is in all cases, essentially one of fact, and it must not be confused by importing into it. as principle of law, the reasoning applied in other cases for determining the issue of negligence on other sets or facts. The circumstances of each case are almost always peculiar and unique, with the result that the conclusion in one case can hardly constitute a safe or helpful illuminating guide for another."

10. A judge in a compensation case cannot be led by the nose by other holdings but he may permit himself to be guided by the expression of the wisdom and experience of his compeers.

11. Two rulings of <ORG> reported in AIR 1962 SC 1 and AIR 1966 SC 1750 and a host of <ORG> rulings have been pressed before us by counsel. The multiplier in each case is different from the other for obvious reasons; and circumstances, such as, fall in money value, loss of society of the husband or wife, have been taken note of in some cases. It is difficult to derive direct benefit from these rulings; for, there exists no fool-proof formula regarding compensation. I can only observe --and that does not make any one the wiser --that the <ORG> should be realistic and have due regard to the risks and the prospects and those other vicissitudes and changes hidden by the thick veil of time. But all these 'mystic may-bes' must he in the background only, while 'beaten-track' probabilities of the work-a-day world must occupy the foreground of the judicial mind. I have attempted to arrive at a figure avoiding exaggerations on either side and come to the conclusion that in the case of <NAME> a multiplier of 10 (ten) and in the case of <NAME> a multiplier of 12 (twelve) may be adopted safely. So far as <NAME> is concerned, the old age of his parents is a weighty factor depressing the multiplier and the great likelihood of his marrying shortly, had he been alive, also works in the same direction. A multiplier of ten will be fair to the aged parents in his case. <NAME> had around 1.5 years of working life while <NAME> had about 20. Life might snap before this, for many chancy reasons. They may be thrown out of employment. Working capacity may be impaired due to ill-health. The rupee may lose its purchasing power with inflationary trends. Among their present dependants, the sons may begin to earn and daughters marry, ceasing to depend or depend to the same extent. The lay-out on the family includes the expenses on the parents which have not been claimed in O.S. 20 of 1965 (<NAME>) and to a lesser extent, on the brothers and sisters, who cannot claim, and these entail a deduction. O.S. 21 of 1965 also shows similar features. <NAME>'s family burden is slightly heavier than <NAME>'s and the reduction in the multiplier induced by the factor of some members attaining self-dependence is greater in <NAME>'s case. <NAME>'s widow, still in her twenties, might well re-marry, unlike <NAME>'s middle-aged widow. In the case of <NAME>, his youth leaves a long working life ahead; but his parents, the only dependants figuring as claimants, are perilously near exit, going by longevity forecasts -- one has died by now -- and he himself might marry and spend much more on his spouse and children and much less on his parents. In the case of <NAME> it has been mentioned by the <ORG> below that there was some property belonging to him which would be inherited by the claimants in the present suit and that income should be deducted when working out the annual value of the dependency. Technically that is correct, but all things considered, there are many factors which might push up the value of the dependency in future and we do not have details about the improvements in the property so as to ascertain the period during which the income would be available. Being negligible even otherwise, I am inclined to ignore it in arriving at the basic figure. Many other plus and minus factors have to be looked into, acturial operations figured out and movements up and down made on the mental vernier of the Judge, before reaching a multiplier, the nearest to a safe approximation of reasonable expectations, crystallising vaporous possibilities. The intangible ana complex mechanics of quantifying compensation demands personalised prediction in each individual case and cannot be substituted by wooden rules of thumb to which the learned Subordinate Judge has succumbed. We cannot but take exception to the curious but artificial calculations he has made. After all, as <NAME>, J., recently observed, in a different context:

"The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judges of fact, it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities." (C.A. No. 667 of 1965 decided on July 23, 1968).

As I mentioned earlier, there are two ways in which the present value of the dependency can be worked out; either you fix (he multiplier, disregarding the fact of lump sum payment now, and then, with reference to the relevant annuity tables, read down that figure into the present value; or alternatively, you reduce the multiplier, having in mind the thought that a lump sum is being paid now in the place of staggered payments over the years. Courts in England have leaned towards the latter method, and in arriving at the multipliers mentioned above I have adopted the same course.

12. A minor point. Section 1-A speaks of 'child' as a qualifying dependant. It was' argued that a child ceases to be one on. attaining 18 years of age and so in calculating the benefit of a son or daughter, one must stop at 18, the age of majority. I disagree. In this context, child merely means offspring, being correlative to parent. We should not confuse between child and infant or child and minor. The accent is on the biological bond and not the tender years. It may well be that in our socio-economic conditions a child may begin to earn only in his twenties, while in the U.S.A. or the Scandinavian countries many teenagers cease to be dependants.

13. Interest has been decreed by the trial Court from the date of the institution of the suit. Counsel for the appellant contended that interest should not be allowed in claims for unliquidated damages till the date of quantification i.e.. till the date of the decree. In this case, the suits have been pending for a long time and the arithmetical impact of the submission is obvious but Section 34 of the Civil Procedure Code governs the situation. This question was considered in a ruling reported in <CITATION> ., 51 Mad LJ 243 = (AIR 1926 Mad 1021).

"I see no reason why a successful party should be made to suffer because his claim is not decided soon after the filing of his plaint. When he files his plaint he puts the matter in the hands of the <ORG> for decision. If it be held that the plaintiff cannot get interest from the date of his filing his plaint, it is equivalent to saying that the plaintiff must be deprived of the fruits of his success to the extent of losing interest from day to day during the pendency of his suit on the sum that he was entitled to at the date of his going to <ORG>. The date of instituting the suit is the date upon which the rights of parties are ordinarily determined, and when the decree fixes the amount of damages due I think that they may be taken as fixed as on the date of the suit, and interest allowed upon that sum."

Mr. Justice <NAME>, J., observed on the same question:

"It is however contended for the defendant that if at the time of the suit the damages were unliquidated, interest cannot be awarded under the section. No distinction is made in the section between an ascertained sum of money and unliquidated damages. As a question of construction. I find it difficult to accept the suggestion that the word 'money' in the section should be understood in the limited sense of an ascertained sum. The expression 'decree for the payment of money' is very general and to give it due effect, it must be construed as including a claim to unliquidated damages .......... The mere fact that the decree is for the payment of damages cannot by itself be a bar to the plaintiff being awarded interest".

I adopt this view and award interest to the plaintiffs from the date of the suit at 6% per annum on the claim decreed.

14. The action having been instituted by paupers, the Court should calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by <ORG> from any party ordered by the decree to pay the same. Had the plaintiff brought the suit in the ordinary course, he would have had to pay Court-fee on the full amount claimed in the plaint. However, it is surprising that the Subordinate Judge has ordered the plaintiffs to pay Court-fee "on the amount decreed" and not on the amount claimed. This is patently wrong, Another obvious error in the costs portion of the decree consists in awarding costs to <ORG>, the 'why' of which no one could explain at the bar and which the Government Pleader himself neither could nor did support. The direction regarding court-fee has not been challenged before us by any party and it is not part of the subject-matter in appeal and so we leave it as it is. The direction regarding costs to the insurer has been challenged and has to be cancelled. We do so.

15. Another anomaly or self-contradiction in the judgment of <ORG> deserves mention before closing the judgment. In one part of the judgment i.e., at the close of paragraph 8 the learned Subordinate Judge rightly observed:

"It is therefore clear that the plaintiffs have sought their remedies only under Section 1-A in the plaint and they cannot at this stage assert any claim under Section 2 ."

Somewhat curiously, what he said in paragraph 8 swam out of his ken as he reached paragraph 10, for he concludes:

"Taking all these facts into consideration, considering the pain and sufferings and mental agnoy the deceased persons had till their death and the loss of expectations of life and considering the age of the persons, it seems to me that it will be reasonable to fix Rs. l,000/- on this account to the plain tiff in each of the suits." _ We find that the Subordinate Judge was right in paragraph 8 and wrong in para graph. 10. And what is stranger still, all the three plaints allege not the pain and suffering of the deceased which alone are compensable under Section 2 of the Act but "the great mental pain and shock due to this tragedy" to the plaintiffs for which there is no remedy except words of sympathy. The observation of <ORG> in para graph 10 that "the plaintiffs have claimed in all these cases a further amount of Rs. 5000/-

for the value of pain and suffering for each party under Section 2 of the Act" is either ambiguous or a misreading of the averments.

We disallow the award of Rs. 1,000/- each, made by <ORG> under the head pro vided for in Section 2 of the Act.

16. The Act contemplates not merely the award of a gross sum by way of compensation payable by the defendant, but also its division among the dependants "proportioned to the loss resulting from such death to the parties respectively". An unhappy feature of this case, relevant to the present aspect, needs mention. The parents of <NAME> are alive and are entitled under Section 1-A of the Act to some compensation but are neither impleaded nor represented in the circle of beneficiaries on whose behalf the present action has been brought. While, in the circumstances of this case, this factor does not make any material change in the quantum of compensation payable by. the defendant to the widow and children, there is the melancholy thought that it must have been ignorance or financial inability that has kept them back from putting forward their claim, emphasising the need not merely for legal, aid to the poor but also for education of the backward sections of the people in their right, systematically, through some competent professional agency.

17. In O.S. No 46 of 1961 the claimants are only the widow and her three young children, and having due regard to the needs of the education for the sons and the daughter and the provision for marriage of the latter, it may be just to apportion the total amount awarded among the 4 plaintiffs equally. Three of the plaintiffs are minors and Order 32, Rule 6 (2) requires the guardian or next friend to furnish security sufficient to protect the property of the minors. But, under the proviso to Sub-rule (2) where the next friend or guardian happens to be the parent, the Court may dispense with security. Considering that the 3 children are living with the mother, have to be sent to school and maintained by her and since the prospects of her re-marrying are remote, we think it reasonable to dispense with security in this case and direct that the 1st plaintiff be allowed to withdraw the money awarded to the plaintiffs 2 to 4 without conditions, but to be used only on them.

18. <NAME>'s dependants, again, consist of the widow and three tiny kids. Unfortunately, the three children are orphans, now that the widow has also died. Having due regard to the totality of the circumstances of the case it is fair to award equal shares to the widow and each of the three children. They are stated to be under the care and protection of the grand-mother who has other children i.e., the brothers of <NAME>. We do not think it proper to allow this old lady to withdraw the money of the children who, by the way, will be entitled to their mother's share also, without some kind of security. We consider it sufficient safeguard if the grand-mother and the priest of the Parish to which the plaintiffs are attached, give personal bonds, undertaking to account for the sums withdrawn, to the <ORG>. If the priest declines, some other alternative safeguard should be insisted on by the <ORG>. It may be in the interests of the minors to have the amount invested profitably in some landed property. The executing <ORG> also can take proper steps in this behalf under Order 21, Rule 15 (2) of the Civil Procedure Code, when the decree is sought to be executed. No further directions are deemed necessary by us.

19. The suit is decreed in each of the above cases in the following manner, with proportionate costs here and in the Court below. In O.S. No. 46 of 1961 of <ORG> (renumbered as O.S. No, 20 of 1965 of <ORG>Court) (by <NAME>'s dependants) there will be a decree for Rs. 10,000A with interest at 6% from date of suit and proportionate costs. In O.S. No. 48 of 1961 of <ORG>-Court (renumbered as O.S. No. 21 of 1965 of <ORG>Court) (by <NAME>'s defendants) there will be a decree for Rs. 10,000/- with 6% interest from the date of suit and proportionate costs, and in O.S. No. 47 of 1961 of <ORG>-Court (renumbered as O.S. No. 22 of 1965 of <ORG>Court) (by <NAME>'s dependants) there will be a decree for Rs. 8,000/-with 6% interest from the date of suit and proportionate costs. This sum should be divided between the father and mother (Plaintiffs 1 and 2) in equal shares. The father's needs are more, but the mother's life is likely to be longer and hence the justification for the equal division. <ORG>, under Section 95 (2) (b) of the Motor Vehicles Act , is bound to pay a maximum of Rs. 2,000/- per passenger killed and this has already been deposited in deduction of the decree passed, it is sad that an Indian life should be so devalued by an Indian law as to costs only Rs. 2,000/-, apart from the fact that the value of the Indian rupee has been eroded and Indian life has become dearer since the time the statute was enacted, and the consciousness of the comforts and amenities of life in the Indian community has arisen, it would have been quite appropriate to revise this fossil figure of Rs. 2,000/- per individual, involved in an accident, to make it more realistic and humane, but that is a matter for the legislature; and the observation that I have made is calculated to remind the law-makers that humanism is the basis of law and justice,

20. The appeals are allowed to the extent set out above.

<NAME>, Ag. C.J.

21. I have read the Judgment prepared by my learned brother and I unreservedly agree with the conclusions reached by him and with the reasoning germane thereto.