PETITIONER: MOHAR RAI & BHARATH RAI Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT: 22/03/1968 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. BACHAWAT, R.S. CITATION: 1968 AIR 1281 1968 SCR (3) 525 CITATOR INFO : D 1971 SC2233 (10) R 1976 SC2263 (11) RF 1988 SC 863 (7,8,20) R 1990 SC1459 (9) ACT: <ORG> and <ORG> refusing to examine accused's defence on ground their version had already been rejected in another case filed on a complaint by accused-if permissible. Code of Criminal Procedure, 1898, Ss. 145, 154, 157 & 168- document containing statement of accused in investigation accused not examined as witness-whether document Admissible evidence. HEADNOTE: The first appellant was convicted under.s. 324 IPC for shooting and injuring PW 1, at the instigation of the second appellant, who was himself convicted of an offence under s. 324 read with s. 109 . The existence of enmity between the appellants and most of the prosecution witnesses who spoke to the occurrence was satisfactorily established. The plea of the appellants in their defence was that on the date of the incident when they were returning home in the evening, they were way-laid by PWI and several others and were assaulted; thereafter with a view to foist a false case against them, a revolver was forcibly thrust into the hands of the first appellant. In connection with this incident, the <ORG> came to initiate three prosecutions : One case was instituted on the basis of a complaint by the first appellant; a second case was commenced against the first appellant under s. 19(f) of the Indian Arms Act for being armed with a revolver; and the third was the present case. The case instituted on the first appellant's complaint as well as the case against him under the Arms Act were both dismissed. The trial court as well as the <ORG> refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the Magistrate in the prosecution commenced on these basis of the complaint by the first appellant. In appeal to this Court it was contended on behalf of the appellants that they did not have a fair trial; the <ORG> as well as the trial court on an erroneous view of the law refused to take their defence into consideration; they ignored important circumstances appearing in favour of the appellants; and furthermore, some of the conclusions reached by them were unsupported by any evidence on record. It was also contended that an inadmissible document, namely a statement made by, the 'second appellant in the course of the investigation was wrongly admitted; this admission was hit by a. 162 of the Code of Criminal Procedure which bad also greatly prejudiced the case of the appellants. HELD : The appeals must be allowed and the appellants acquitted. (i) The trial court as well as the <ORG> erred in summarily ejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the Magistrate in the case filed on the complaint of the first appellant, it could not be considered again. The defence of the appellants was highly Probabilised by three important circumstances, namely, (1) it was put forward immediately after the occurrence, (2) it satisfactorily explained the injuries found on the persons of the appellants while the prosecution evidence failed to 526 explain those injuries; and (3) the prosecution evidence itself showed that the first appellant could not have used the revolver exhibited and therefore his version that weapon was thrust on him was probabilised. [531 H-532 B] In both the prosecutions-in the complaint made by the first appellant as well as in the complaint made by P.W.I-the prosecutor before the court was the <ORG>. Therefore, the decision in the former case could not operate as an issue- estoppel against the appellants in the present case, because they were not parties in the former case. In other words, the plea taken by the appellants in this case was never before litigated between them and the <ORG>, the Opposite party in the present case. All that ran be said is that the case put forward by the <ORG> in the one case was in- consistent with that put forward by it in the other. In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence. 1531 B-D] Pritam Singh v. The <ORG> of Punjab, A.I.R. 1956 S.C. 415; <CITATION> , (1964] S.C.R. 123; <NAME> v.Public Prosecutor,  A.C. 458; and King v. <NAME>; 77 C.L.R. 511 at pp. 518-519, referred to. (ii) The trial court and the <ORG> relied on the second appellant's statement in the document admitted in evidence to the effect that it was a particular person who fired a pistol to contradict the statement of the first appellant in his complaint that a pistol was fired by some other person. No portionof this statement could have been used for that purpose either s. 157 ors. 145 of the Evidence Act . As the second appellant was not examined as a witness in the present case, his previous statement could not have been used either to contradict his evidence or corroborate it even if it were to be held that it was a statement falling under s.154 of the Code of Criminal Procedure. [532 H-533 B] Nazir Ali, v. <ORG> of U.P. A.I.R. 1957 S.C. 366; distinguished. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 159 and 160 of 1965.

Appeals by special leave from the judgment and order dated July 28, 1965 of <ORG> in Criminal Appeal Nos. 533 and 534 of 1963.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the appellants (in both the appeals). <NAME>, for the respondent (in both the appeals.) The Judgment of the Court was delivered by <NAME>, J. In these connected appeals by special leave the legality of the convictions of the appellants-appellant <NAME> under s. 324 of the Indian Penal Code and appellant <NAME> under s. 324 / 109 of the Indian Penal Code-is challenged. In the trial court the former was convicted under s. 307 of the Indian Penal Code and the latter under s. 307 / 109 of the Indian Penal Code. <ORG>, in appeal, altered their convictions as set out above.

In order to appreciate the contentions advanced on behalf of the appellants, it is necessary to state briefly the prosecution as well as the defence version. The case made out by the prosecution is that because of previous enmity <NAME> shot and injured <NAME>, at the instigation of <NAME>,, on the evening of October 8, 1961, in Natwar Bazar. The existence of enmity between the appellants and most of the prosecution witnesses who speak to the occurrence, is satisfactorily established. Many of the prosecution witnesses appear to have been proceeded against under s. 107 of the Code of Criminal Procedure at the instance of the appellants. The plea of the appellants was that on the day of incident when they were returning to their house in the evening they were way-laid by P.W.1 and several others; one of those persons fired shots at <NAME>, but it missed him; to save himself he (<NAME>) ran away from the scene, subsequently two more shots were fired; meanwhile he got into the house of <NAME> (P.W.9), but his assailants pursued him, forced their entry into the house of P.W.9 and there assaulted him; thereafter with a view to foist a false case against him forcibly thrust into his hands the revolver (Ex-II) and then handed him over with Ex.III to <NAME> (P.W. 15), the police constable. ThE plea of <NAME> was that during the incident mentioned by <NAME>, he was caught hold of and assaulted by some of the prosecution witnesses. <ORG> and the trial court have rejected the plea of the appellants and relying on the prosecution evidence convicted the appellants as mentioned earlier. <ORG> being a Court of special jurisdiction does not reassess the evidence in a case except under exceptional circumstances. It was urged on behalf of the appellants that they did not have a fair trial, <ORG> as well as the trial court on an erroneous view of the law refused to take into consideration their defence, they ignored important circumstances appearing in their favour and further some of the conclusions reached by them are unsupported by any evidence on record. We have to see how far these-submissions are well-founded.

Out of the incident mentioned above, the State came to ini- tiate as many as three prosecutions. G. R. Case 1370/TR-20 of 61/63 in <ORG>, Sasaram was instituted on the basis of the complaint lodged by <NAME>. G.R. 506 of 1962 on the file of the Munsif- Magistrate I Class, Sasaram was a case under s. 19(f) of the Indian Arms Act against <NAME> for being armed with a revolver at the time of the incident mentioned earlier. The third case is the one with which we are concerned in these appeals. The case instituted on the basis of the complaint made by <NAME> was acquitted on February 1, 1963. The Arms-Act case ended in acquittal on May 13, 1964. The appeal against that order was dismissed by <ORG> on September 5, 1966. A copy of the judgment in that appeal was produced at the hearing of these appeals and received as additional evidence with our permis- sion.

The trial court as well as <ORG> refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the learned Munsif-Magistrate I Class, Sasaram in the prosecution commenced at the instance of <NAME>.

The prosecution case was that immediately after the occur- rence, <NAME> was chased and caught and at that time he had in his hands the revolver (Ex.III). Very soon thereafter he was produced before <NAME> (P.W.19) with the revolver in question. The further case of the prosecution was that P.W. 19 seized that revolver; later during investigation he seized the three cartridges said to have been fired by <NAME> as well as a misfired cartridge; the revolver as well as the seized cartridges were sent to the ballistic expert for examination. These facts were spoken to by the prosecution witnesses, in particular by <NAME>, the constable to whom <NAME> was handed over immediately after the occurrence and <NAME> investigating officer. P.W. 19 deposed that the number of the revolver seized is 545465. He is positive that the revolver seized from <NAME> is Ex. 111, though in his report to the ballistic expert he had given the number of the revolver sent for examination as 545466, but in that report itself he had added a note to say that the last two digits were not clear,. The prosecution proceeded on the basis-there is no ambiguity about it-that Ex. III was the weapon that was used in the commission of the offen- ce. The ballistic expert who was examined as D.W. 1 was positive that the seized empties as well, as the misfired cartridge could not have been fired from EX.III. The evidence of this witness has been accepted both by the trial court as well as by <ORG>. From that it follows that the prosecution case that <NAME> fired three shots from Ex.III cannot be accepted as true. If this part of the prosecution case fails then very little remains in the prosecution case. The trial court and <ORG> have brushed aside this important aspect on a wholly untenable basis. They opined that by some mistake a revolver different from that seized from <NAME> might have been sent to the ballistic expert. The conclusion has no basis on the material on record. It is just a speculation -a process not open to- courts. Evidently overwhelmed by the evidence of the large number of )Witnesses who deposed in favour of the prosecution case, forgetting the fact that most of them belong to the faction opposed to the appel- lants. the trial court and <ORG> ignored the probabilities and lost sight of the evidence afforded by the circumstances appearing in the case. Both those courts failed to realise that the fact that Ex. III was not the revolver that was used during the incident went to probablise the plea taken by <NAME>. At this stage we may recall the fact that both the trial Magistrate as well as <ORG> rejected the prosecution case and acquitted <NAME> in the case against him under s. 19(f) of the Arms Act. It is true that the decision of the trial court in that case was rendered after the Assistant Sessions Judge, <NAME>, convicted the appellants in the present case and therefore it may be that the appellants cannot take the benefit of the rule laid down by this Court in <CITATION> (1) and affirmed in <CITATION> (2). But even without the assistance of that rule, on the basis of the prosecution evidence itself the prosecution version stands discredited. Once it is proved that the empties recovered from the scene could not have been fired from Ex.III the prosecution case that those empties were fired from Ex.III by <NAME> stands falsified. The trial court as well as <ORG> wholly ignored the significance of the injuries found on the appellants. <NAME> had sustained as many as 13 injuries and <NAME> 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of <NAME> when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. <NAME> (P.W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances we are unable to agree with <ORG> that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.

Both the trial court as well as <ORG> refused to take into consideration the plea of the appellants on the ground that that plea did not commend itself to the trial Magistrate in the case instituted on the complaint of <NAME>. They were erroneously of the view that the plea in question was barred by the rule laid down by this <ORG> in <NAME> case(1). In that case, this <ORG> accepted as correct the following statement of (1) A.I.R. 1956 S.C. 415.

(2) [1964] 7 S.C.R. 123 the law made by <ORG> in Sambasivam v. Public Prosecutor, Federation of Malaya():

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro vetitate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial."

<NAME>, of <ORG> in the King v. Wilkes(2) explained the legal position in these words :

"Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue-estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by <NAME>, J. in R. v. <NAME> [1960] II Q.B. 758, at p. 769) which, in effect I, have adapted in the fore- going statement...... There must be a prior proceeding determined against the <ORG> necessarily involving an issue which again arises in a subsequent proceeding by the <ORG> against the same prisoner. The allegation of the <ORG> in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue- estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue-estoppel is concerned with the judicial establishment of a pro-

(1) [1950] A.C. 458.

(2) (77)C.L.R.511, at pp.518-519.

position of a law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation."

This Court endorsed that statement in <ORG> case('). But the law laid down in those cases has no application to the facts of the present case. In both the prosecution-in the complaint made by <NAME> as well as in tie complaint made by <NAME> the prosecutor before the court was the <ORG>. Therefore, the decision in the former case cannot operate as an issue-estoppel against the appellants in the present case, because they were not parties in the former case. In other words the plea taken by the appellants in this case was never before litigated between them and the <ORG>, the opposite party in the present case. All that can be said is that the case put forward by the <ORG> in the one case is inconsistent with that put forward by it in the other. In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence. That apart, it is doubtful-though for the purpose of this case it is unnecessary to express any final opinion on this point-whether the rule in question could be pressed against an accused, the reason being that while a prosecution cannot succeed unless it proved its case beyond reasonable doubt, the nature of the proof required of an accused in substantiating the plea taken by him is different-it is sufficient if he proves that plea taken by him is reasonable and probable. In that event he-is entitled to the benefit of doubt. This aspect was noticed by this Court in <ORG>) case, where it was observed:

"Before parting, we think it proper to make one observation. The question has sometimes been mooted as to whether the same principle of issue-estoppel could be raised against an accused, the argument against its application being that the prosecution cannot succeed unless it proved to the satisfaction of the <ORG> trying the accused by evidence led before it that he is-guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination."

For the reasons mentioned above, we are satisfied that the trial court as well as the <ORG> erred in summarily rejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the court in G.R. case 13761TR 20 of 61/63 in the court of the Munsif-Magistrate I Class, <NAME> the same cannot be again considered. We think that the defence of the appellants is highly probabilised by (1) [1964] 7 S.C.R. 123.

three important circumstances, namely-(i) the same was put forward immediately after the occurrence, (ii) it satisfactorily explains the injuries found on the persons, of the appellants while the prosecution evidence fails to explain those injuries,. and (iii) the prosecution evidence itself shows that <NAME> could not have used Ex. III and therefore his version that that weapon was thrust on him is probablised.

The last contention taken by Mr. <NAME> is that admission of Ex. 4, an inadmissible document, has greatly prejudiced the case of the appellants. According to him, the admission of that document is hit by S. 162 of the Code of Criminal Procedure. In the alternative, he contended that that document could not have been used to discredit the plea taken by <NAME>,, We have earlier noted the two divergent versions given by <NAME> and <NAME> in respect of the incident that took place on the evening of October 8, 1961. Quite naturally, both these complaints were investigated simultaneously. The statement given by <NAME> was recorded as first information in one case and the statement given by <NAME> as first information in the other. Appellant <NAME> was questioned during the investigation. His statement is Ex. 4. The trial court came to the conclusion that it was not hit by s. 162 as the same was not recorded in the course of investigation in the case against <NAME>. <ORG> justified the admission of that document on the basis of the rule laid down by this <ORG> in <CITATION> ('), namely-where the person who lodged the first information report regarding one offence is himself subsequently accused of that offence and tried and the report lodged by him is not a confessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the <ORG>, viz., how and by whom the offence was committed or whether the statement of the accused in the court denying the correctness of certain statements of the prosecution witnesses is correct or not, the first information report is admissible to prove against him, his admissions which are relevant under S. 21 of the Evidence Act. It was contended on behalf of the appellants that whether that statement is held to have been taken during the investigation of the complaint made by P.W. 1 or during the investigation of the complaint made by <NAME>, in either case it is hit by S. 162 of the Code of Criminal Procedure'. It was also urged that the rule laid down in <NAME>'s case() has no application to the facts of the present case, In the instant case no portion of Ex. 4 was relied on as an admission of <NAME>. Hence the rule laid down in <NAME>'s case(') could not have been called into aid. The trial court and the High <ORG> relied on <NAME>'s statement that it was <NAME> who fired a pistol (1) A.I.R. 1964 S.C. 1850.

to contradict the statement of <NAME> in his complaint that a pistol was fired by <NAME>. No portion of Ex. 4 could have been used for that purpose either under S. 157 or s. 145 of the Evidence, Act. As <NAME> was not examined as a witness in the present case his previous statement could not have been used either to contradict his evidence or corroborate it even if it is to be held that it is a statement coming under s. 154 of the Code of Criminal Procedure : see <CITATION> .(1). The circumstances noticed above, in our opinion, not merely affect the value and weight to be attached to the prosecution evidence, but they persuade us to doubt the prosecution version. In the circumstances, we are unable to resist the conclusion that there has been a miscarriage of justice.

We accordingly allow these appeals and acquit the appellants.. Their bail bonds do stand cancelled. R.K.P.S. Appeals allowed.

(1) A.I.R. 1957 S.C. 366.


JUDGMENT <NAME>, <NAME>

(1) We are fully satisfied, after a careful consideration of the arguments urged by the learned counsel for the appellants, that this Letters Patent Appeal ought not to be admitted. The facts are clear. The appeal is sought to be filed by the owner of a motor vehicle and by the Insurance company, with regard to a case of a fatal motor accident, which gave rise to a justifiable claim for compensation. Not merely <ORG> constituted under the Motor Vehicles Act . which went into the question, but also the learned Judge(Venkatadri J.) who heard the civil miscellaneous appeal, both came to the unambiguous conclusion on the merits that this was a case of a motor accident that ended fatally, under such circumstances as to justify, and fully justify, the claim for compensation.

(2) The main argument pressed before us was that the claimant was the married sister of the victim, a bachelor who died without leaving a child, parents or any other heir. Our attention was then drawn to the provisions of the Fatal Accidents Act (Central Act 13 of 1855), under Section 1-A of which an action of that kind should be brought forward by an "executor, administrator or representative of the person deceased". There are authorities of High Courts, into which we need not proceed here, since this proposition is not really relevant for out purpose, that the word "representative" in S. 1-A does not mean a legal representative of the kind contemplated in the Civil Procedure Code, but must have reference to the earlier words in the same section "for the benefit of the wife, husband, parent and child". There is much to be said for the view that, if this Central Act 13 of 1855 is to govern the claim, a married sister of the victim, who died a bachelor without leaving behind a wife, child or parents, cannot bring forward a claim of this sort for her own benefit.

(3) But the law has not been stationary since the Central Act was enacted in 1855. On the contrary, there has been considerable development since then, and it is also obvious that in the subsequent century that has elapsed, the volume of motor traffic and the statistics or motor accidents, fatal or otherwise, must both have originated and increased beyond all proportions. In this perspective, the legislature has deliberately enacted the Motor Vehicles Act , and provided by virtue of Ss. 110 to 110-F of that Act, not merely a self-contained Code for the adjudication of claims to compensation on behalf of the victims of a motor accident, but also a complete machinery for the adjudication of such instances. Under S. 110-F , the jurisdiction of <ORG> is specifically ousted by <ORG> for the area. The claim in the present case is under Ss. 110 to 110-F of the Motor Vehicles Act. It has no connection whatever with the Indian Fatal Accidents Act (Act 13 of 1855) and is not advanced under any section or provision of that Act. It is noteworthy that Ss. 110 to 110-F that we have referred to, make no mention of any kind concerning any of the provisions of the Fatal Accidents Act , and do not incorporate any such provision even by the most oblique reference.

(4) Notwithstanding all this, and notwithstanding the fact, which is undeniable, that under S. 110-A of the Motor Vehicles Act, an application for compensation arising out of an accident can be put forward "by the legal representatives of the deceased", the ground is urged that the Fatal Accidents Act (Act 13 of 1855) ousts the relevant provisions of the Motor Vehicles Act . We are unable to accept this argument, and it is not related to the structure of either Act. On the contrary the relevant part of the Motor Vehicles Act is free of any reference, even obliquely, to the Fatal Accidents Act . An argument is further advanced that the Motor Vehicles Act (Ss. 110 to 110-F) does not lay down any new liability; it only provides for machinery for the adjudication of claims to compensation. Certain observations of <ORG> in <NAME> v. General Manager <ORG>, are relied upon, in support. We have looked into this decision, and we do not find there any reference to the provisions of the Fatal Accidents Act , as excluding the application of the Motor Vehicles Act . It is true that the learned Judge states that Ss. 110 to 110-F of the Motor Vehicles Act do not supersede the cardinal principles of liability in tort. But that observation was made, in the context of a situation when it had to be considered whether it was necessary or not necessary to establish, in support of a claim for compensation under the Motor Vehicles Act that the accident was the result of negligence on the part of the owner or driver of the vehicle. In the present case, we have already affirmed that, on the merits, both <ORG> and the learned Judge found that this was an accident which could give rise to a claim for compensation under the law. The only point was whether the claim could be advanced by the married sister of the deceased, who died a bachelor. It can certainly be so advanced, since S. 110-F definitely provides for the foundation of a claim by any legal representative of the victim of the accident.

(5) We have also been invited to consider the argument that the non-joinder of the driver of the vehicles, as a party to the proceedings, will vitiate the proceedings. We can find nothing in the record, or in the provisions of the Act, to justify this view. In our view this is a simple case of a claim to compensation arising out of a fatal motor accident, preferred by the immediate next-of-kin and legal representative of the victim, under the provisions of the Motor Vehicles Act , which was justly recognised by the courts. Neither the owner of the vehicle, nor the Insurance company, can be said to have suffered any prejudice, or to have sustained any ground of grievance. This Letters Patent Appeal is dismissed.

(6) Appeal dismissed.


JUDGMENT <NAME>, Acting C.J.

1. This is an appeal against an order made by Mr. Justice <NAME>, under Clause 18 of the Matters Patent, for the transfer of a claim, suit from <ORG> to this Court.

2. A preliminary objection has been taken on behalf of the respondent that the appeal is incompetent, in as much as the order is not a "judgment" within the meaning of Clause 15 of the Letters Patent. There can be no question, in our opinion, that the proceeding whish has been transferred is a suit within the meaning of Clause 13 of the Letters Patent. It was pointed out by Mr. Justice <NAME> in the case of <CITATION> 18 C. 296 : 9 Ind. Dec. (N.S.) 197, that, under the Rules of Small Cause Court, claims are not tried summarily; they are dealt with just as suits are and we find that the proceeding is described and is numbered as a suit lending in <ORG>. The only question consequently is, whether the order of transfer is a judgment." We are of opinion that the answer must be in the negative.

3. In the case of the Justices of the Peace for Calcutta v. <ORG> 8 B.L.R. 433 : 17 W.R. 364, Sir <NAME>, C.J" said: "We think that judgment in Clause 15 means a decision which affects the merits of the question between the parties determining some right or liability. It may be either final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to the determined." In the case before us, the order for transfer does not involve a decision which affects the merits of the question between the parties, nor does it determine some right or liability. We do not overlook the later decision in the case of <NAME> v. <NAME> 13 B.L.R. 91 : 21 W.R. 303. Where it was ruled that an order granting leave to sue, to the plaintiff, under Clause 12 of the Letters Patent, is a "judgment" and is appealable under Clause 15, It was explained that an order granting leave to sue was not a mere formal order or an order merely regulating the procedure in the suit, but one that had the effect of ving a jurisdiction to the <ORG> which it otherwise would no have and, from this point of view, it tight fairly be said lo determine some right between the parties, namely, the right to sue in a particular <ORG>, and to compel the defendants who were not within its jurisdiction to come in and defend the suit, or, if they did not, to make them liable to have a decree passed against them in their absence. These reasons, obviously, are not applicable to a case of the description row before us.

4. It has been contended, however, that the order under appeal not only directs the transfer of the suit, but also declares thus the defendant firm will be at liberty to proceed with the gale in execution of the decree of <ORG>, made in a previous suit This declaration is merely ancillary to the order for transfer, and cannot be deemed appealable irrespective of the character of the primary order. We are accordingly of opinion, upon a construction of Clauses 13 and 15, that the order is not appealable.

5. It is worthy of mention that our attention has not been drawn to any case in which an appeal has been entertained from an order of this description. Orders for transfer have frequently been made for years past and many of them are to he found in the reports: but there is no trace that an appeal has ever been successfully maintained against an order for transfer under Clause 13 of the Letters Patent.

6. The result is, that the appeal is dismissed with costs.

7. The Rule is discharged with costs.

<NAME>, J.

8. I agree.


JUDGMENT <NAME> Mtttal, J.

1. This is an appeal by the insurance company against the award of <ORG>, Gurgaon, dated 22nd of April, 1971, whereby a sum of Rs. 8,000 has been awarded to each of the three claimants against <NAME>, driver, <NAME>, owner of the truck and the appellant-insurance company. Out of the amount awarded Rs. 20,000 was to be paid to the claimants by the insurance company and the remaining by the owner and the driver of the truck jointly and severally.

2. <NAME> was conductor on truck No. HRG-1170, which belonged to <NAME>, respondent, and used to be driven by <NAME>, respondent. The truck was insured with <ORG>, New Delhi, and under the policy there was a special clause that the insurance company would be liable to compensate not only under the Workmen's Compensation Act , 1923, but also under the Fatal Accidents Act or at common law in respect of any personal injury to any paid driver (or cleaner or conductor or a person employed in loading and/or unloading). On 12th of March, 1969, while <NAME>, conductor, was checking the wheels of the truck, the driver started it with the result that <NAME> was crushed under the wheel of the truck as a result of which he died at the spot. The widow, a minor son and a minor daughter of the deceased-conductor filed a claim petition before <ORG>, Gurgaon, for awarding Rs. 50,000 as compensation.

3. The application was contested by all the respondents except <NAME>, driver, who did not appear and was proceeded ex parte. The insurance company took the plea that by virtue of Section 95 of the Motor Vehicles Act, 1939, <ORG> has no jurisdiction and it was further pleaded that the liability, if any, with regard to a conductor, which was required to be covered under the provisions of the Motor Vehicles Act , was limited up to the liability as fixed under the Workmen's Compensation Act . It was also stated that the maximum liability of the insurance company was limited to Rs. 20,000 only, besides taking other pleas that there was no rash and negligent driving by the driver of the truck and for that reason no compensation was liable to be paid. On the contest of the parties, the following issues were framed :

1. Whether the <ORG> has no jurisdiction to try this petition ?

2. Whether the award cannot be passed against the insurance company ?

3. Whether the deceased <NAME> was a conductor on truck No. 1170-HRG?

4. Whether the deceased was killed as alleged by the applicants and to what compensation are the applicants entitled ?

5. Whether the applicants are the heirs of the deceased ?

6. Relief.

4. The <ORG> held under issue No. 1, on the basis of certain decisions which have been noticed, that it had the jurisdiction and this point has not been raised before me in appeal. As regards issues Nos. 2, 3 and 4 which were dealt with together, it was held that the case was not covered by Section 95 of the Motor Vehicles Act with the result that the Workmen's Compensation Act was not applicable and, therefore, the liability of the insurance company was not limited to the amount which could be awarded under the Workmen's Compensation Act . The driver of the truck was held guilty of rash and negligent driving and these issues were decided in favour of the claimants. Under issue No. 5, it was held that all the claimants are heirs of the deceased.

5. Before me, Mr. <NAME>, wanted to raise his first submission which was also raised before the Tribunal that since the deceased was a conductor on the truck, the case fell under Section 95(2)(b) of the Motor Vehicles Act and the compensation which had to be awarded to the claimants had to be calculated in the manner given in the Workmen's Compensation Act . Before this point could proceed further for discussion, Mr. <NAME>, appearing for the claimants, pointed out from the insurance policy, which is on the record, that there was a special clause in the insurance policy for which the insurance company took higher premium and according to that clause this point need not be gone into although he is on firm footing on this point also, in view of the <ORG> decision in <CITATION>  ACJ 422.

6. I think Mr. <NAME>, counsel for the claimants, is right in saying that the aforesaid point raised by Mr. <NAME> need not be gone into in view of the special provision in the policy on the basis of which the claimants would be entitled to claim compensation at common law. In support of this point, Mr. <NAME>, apart from relying on the special clause, has cited before me a judgment of <ORG> in <CITATION> , AIR 1975 Mad 198, and two Division Bench judgments of <ORG> in <ORG> & Co. v. <NAME> Mohamabhai  ACJ 44; AIR 1977 Guj 179 and <CITATION>  ACJ 186; AIR 1979 Guj 26. For facility of reference, the quotation from <ORG> v. <NAME> may be reproduced (at p. 33 of AIR 1979 Guj 26):

"'...the endorsement quoted above shows that the legal liability of the insurance company was not limited only to one arising under the Workmen's Compensation Act , 1923, but also extended to the liability arising under the Fatal Accidents Act , 1855, or at common law. The expression at common law used in Endorsement No. 16 knocks the bottom of the insurance company's defence down.... ' "

7. Mr. <NAME> had no reply to the aforesaid argument except that he wanted to rely on <NAME> v. <NAME> [1966] ACJ 284, a decision of <ORG>, where a car passenger was not allowed any compensation against the insurance company. That case has nothing to do with the present case as there is a specific provision in the policy for grant of compensation to the conductor and other employees of the insured truck under the common law. As such, this case does not militate against the view taken by the Madras and Gujarat <ORG> with which I fully agree. Accordingly, I hold that in view of the special provisions the claimants were entitled to the compensation under common law and they could be awarded compensation beyond the amount fixed in the Schedule to the Workmen's Compensation Act .

8. No meaningful argument was raised before me to show that the driver of the truck was not guilty of rash and negligent driving when he started the truck without ensuring whether the conductor has come out from under the truck after checking the wheels. It is a clear case of rash and negligent driving and the insurance company is liable to pay compensation to the heirs of the deceased. However, Mr. <NAME> was fair enough to concede that in view of Section 96(2) of the Motor Vehicles Act and the decisions in <CITATION>  29 Comp Cas (Ins) 60 ; AIR 1959 SC 1331 and <CITATION>  36 Comp Cas 340 ;  ACJ 203, the insurance company cannot raise any argument regarding the quantum of compensation.

9. For the reasons recorded above, I find no merit in the appeal filed by the insurance company and dismiss the same. However, there will be no order as to costs.