J.B. Mehta, J.
1. The claimants in these two matters have come up in appeal because the Tribunal has rejected the claim for compensation on the short ground that the offending truck in question could not be identified as the O.N.G.C. Truck in question. The claimants in the first matter in respect of death of Maganlal Sanalal Mistry have now confined their claim only to a sum of Rs. 90,000/- while in the other appeal, the claim of the injured claimant Maganlal Motilal Prajapati is of Rs. 10,000/-.
2. The accident took place on the Deesa Palanpur Highway at about 10-0 P.M. on July 21, 1969. The deceased Maganlal Mistry and the injured claimant in the other matter Maganlal Prajapati had been given a lift by respondent No. 7. Deputy Engineer Mr. Patel who had gone for a visit on the site at Deesa. On the return journey, after leaving Deesa at about 9-15 p.m. when they had travelled for about 12 miles away between Chandisar and Chadotar villages on the highway in the sim of Badarpura village, this accident had taken place between the jeep and the O.N.G.C. truck in question No. GTD 5497. The claimants' jeep was left hand vehicle and it was driven by Respondent No. 7 Mr. Patel. Maganlal Prajapati was sitting in the front seat and to the further right Maganlal Mistry, the deceased, was sitting also in the front seat. The case of the injured claimant Prajapati was that the truck was driven in the middle of this tar road, which at the place of the accident was really running west to east. They had seen the truck at a distance of about two furlongs. The jeep driver dimmed his light and slowed down his speed from 30 to 18 k.m. per hour. The jeep was driven on the correct left side. The truck driver, however, was coming on the middle with headlights on and he did not dim his lights or lessened his speed and did not even divert his truck to the left but continued in the middle of the road even when the accident took place. Therefore, the accident had occurred as the O.N.G.C. truck in question dashed with the jeep. Thereupon Maganlal Mistry fell down on the ground and the injured claimant prajapati was hit by one iron rod of hood canvass of the jeep and he had become unconscious and fallen in the jeep car. The offending truck had dashed with the jeep. It did not stop and had gone away. Thereafter, in the another O.N.G.C. truck which came on the spot the injured were removed to the hospital. The other injured Maganlal Mistry expired and, therefore, his dependents and heirs have filed the claim application. The original claim has now been reduced in appeal to Rs. 90.000/- and the injured claimant has claimed a sum of Rs. 10,000/- That is how both these matters are in this appeal as the claims Tribunal has refused to believe the identity of the offending truck in question.
3. On the question of the accident between the jeep and the truck, the injured claimant prajapati who has given evidence in the companion matter, which was treated as evidence in both the matters, at Ex. 66 is corroborated from various independent sources. So far as the injuries to these two persons are concerned, Dr. Bhogilal Patel, Ex. 84, who performed post-mortem examination as per the p.m. notes, Ex. 85, and who had issued the injuries certificate at Ex. 86 corroborates the evidence of Prajapati. The deceased had about 6 external injuries, most of which were on the right hand side along with the various internal injuries as deposed by the doctor which were necessarily fatal and they are consistent with the version of prajapati that in this motor accident the deceased had been tossed and he had fallen down. The injuries on prajapati, as per certificate Ex. 86, consists of one contused lacerated wound 2' x' skull deep over right parietal region 4' above the right ear and X-ray plate of the skull showed lined fracture of right parietal bone. There was one scratch mark 1' in length over right side of parietal. The inquest panchnama, Ex. 97, proved by panch witness Budhalal Magaljibhai, Ex. 96, also corroborates this evidence that these two victims received injuries in a motor accident.
4. The only material question is as to the identification of the truck in question as the truck GTD 5497. In the written statement, Ex. 54, on behalf of opponents Nos. 1 to 3 the Superintending Geophysicist in whose name the truck stood, the O.N.G.C. and the driver they had not admitted that their truck was involved in this accident and had stated at the outset that the accident had taken place due to rashness and negligence of opponent No. 7 Patel, and their case was that their driver opponent No. 3 was properly observing the traffic rules while running the vehicle on the alleged night. They denied the relevant facts stated by prajapati which were given in the application Ex. 1. Thereafter there is material statement in para 5 of the written statement, Ex. 54, as under:
It appears from the records that the accident is caused due to the carelessness and contributory negligence of the deceased and opponent No. 7 That the opponent No. 3 is the experienced driver and he is never rash or negligent. He is not responsible for the alleged accident.
Therefore, even in the written statement the O.N.G.C. and its driver were on the horns of a dilemma to completely disown their truck having met with the accident, or to take up an alternative stand as they had found from their record that the accident was due to the contributory negligence of the deceased and opponent No. 7 as well. The relevant records have been suppressed by the O.N.G.C. in spite of the categorical statement made in its written statement. There is, however, complete corroboration to the evidence of prajapati by independent evidence of the Assistant Motor Vehicles Inspector Mr. Vishnuprasad Jani, Ex. 88, at Palanpur check post. He examined the vehicles in question. He had gone to the scene of the incident on July 23, 1969, and had seen the victim jeep, in question for which he had issued the relevant accident report in the usual form at Ex. 90. While examining the first vehicle at that time he found that the jeep had the steering track rod bent due to impact. The propelling shaft and universal joint were bent. Oil leakage was from front of the differential; the right running board was hanging; the front right hand side tyre was burst; and some portion of right hand side body of jeep was damaged. He had not seen hood on the jeep at that time. He had immediately proceeded to Tharad and inspected there motor truck No. Gtd 5497. It was lying at the O.N.G.C. Camp. He had examined that vehicle and found that it was machanically fit. There were some marks of damages to that Motor Vehicle. The offside front portion of vehicle of body at corner was damaged; the offside front road wheel rim was twisted; off-side portion of bonnet was also damaged. He had also prepared report Ex. 91 of the damage to the truck. He had categorically deposed that there was no damage in the front side of the vehicle and the damage narrated above was possible if any other vehicle dashed with the truck. The offending truck was six-wheeler Russian Jail. The weight of the vehicle as completely loaded would be 15567 k.gms. The net weight of the unladen truck was 10225 k.gms. The weight of the jeep in question would be about 1000 k.gms and it was of only 15 H.P., whereas the offending truck's engine power was 120 H.P. the jeep had the number plate between the two wheels. He also deposed that in the collision between the two vehicles in question coming from opposite direction, normally the person sitting on the right side would fall down on the ground. When we turn to the two reports in question at Exs. 90 and 91 which this independent officer had prepared only on July 23, 1969, he has categorically mentioned the date, time and place of the accident as July 21, 1969 at about 10-0 p.m. near Badarpur on the Palanpur Deesa highway. From the independent statutory report from the statutory authority who had immediately inspected the two vehicles it is quite clear that the matching of the damage of the offending truck and the victim jeep tells its own story. Unless the offending truck had grazed this victim jeep, such exactly matching damage would not have been possible. The O.N.G.C. has never explained the eloquent damage marks which completely matched which were immediately found when this offending truck was inspected by the statutory officer at the camp of the O.N.G.C. on July 23, 1969.
5. There is also another independent corroboration to Prajapati's evidence from the statutory reports which were furnished to the P.S.I. Pathan, Ex. 104, immediately by the two O.N.G.C. Officers at Exs. 105 and 106, on July 22, 1969. Mr. Pathan has in terms deposed that the two officers of O.N.G.C. had come to the Palanpur City Police Station before him and had informed him that some accident had taken place near Chandisar on the highway and, therefore, he was producing this driver before him. Shri Pathan also categorically deposed that as the two officers did not understand Gujarati language, he asked them to give information in writing in English and thereafter statements in English were given duly signed by these officers in the form of these two statutory reports at Exs. 105 and 106 which were produced by him. It is true that Mr. Pathan had made prompt inquiry after going on the very same night at the scene of the accident at about mid-night. He had recorded F.I.R. of Mr. Patel, Ex. 107. He has known at that time that the O.N.G.C. persons had brought the deceased maganlal mistry and prajapati in O.N.G.C. truck at the Palanpur Civil Hospital. Mr. Pathan, however, stated that at that time the driver of the offending truck of the O.N.G.C. had gone away to tharad and he had sent wireless message to tharad Police Station to send the driver of the truck to the Police Station. He denied the suggestion that he had kept under surveillance the two persons of O.N.G.C. who had come after the wireless message. He denied the suggestion that Girishchandra and Shrinath, the officers who had given the said reports had come to get the driver of the offending truck released on bail or that these two reports were obtained on misrepresentation that if such report was given he would release the driver on bail. In fact, he stated that after the reports, Ex. 105 and Ex. 106 he had released only the cleaner of the O.N.G.C. truck. He had detained the driver. Except wild suggestions made in the cross-examination of Mr. Pathan of the alleged misrepresentation, there is nothing to suggest that these two statutory reports were not made by these O.N.G.C. officers. It is true that the claimants had made attempts to get witness summons against these officers but as they were not present the matter was not pursued. This, however, does not absolve such a public body like O.N.G.C. from its responsibility to examine these two officers who had conveyed to the police statutory information of this accident as required by Section 89(b) of the motor vehicles Act, 1939. The said provision requires that when any person is injured as a result of the accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall-
(a) take all reasonable steps to secure medical attendance for the injured person, and, if necessary, convey him to the nearest hospital, unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or if no police officer is present, the circumstances of the occurrence at the nearest Police Station as soon as possible, and in any case within twenty four hours of the occurrence.
The present statutory report has been submitted to the P.S.I. Pathan within 24 hours by these two responsible officers of the O.N.G.C. Who had been in charge of this vehicle because the driver had not informed the police. It should be borne in mind that we are completely assured of the truth of these statements because they are in English language and Mr. Pathan has in terms stated that he had asked these officers to give their say in English language as they did not understand Gujarati language; Mr. Pathan has very little knowledge of English as he had studied only upto 1st standard English. There is also intrinsic evidence as to the contents of these two statutory reports. In the first report information, Ex. 105, of shri Nath Sharma it is mentioned that at about 0-30 hours opponent No. 3 had come to him and told him that he had an accident with P.W.D. jeep somewhere near palanpur. It was the case of the driver that he had taken the injured persons to the hospital in another vehicle laboratory truck following the winch truck, and after that he came back to the site of the accident and had brought the winch truck to the tharad drill site. It was further mentioned that he had asked him to report the matter to the in-charge of the party and to the officer in-charge of the drill site and he had immediately done so and he had accompanied him to the Palanpur Police Station. The other report, Ex. 106, by the junior Geophysicist Girishchandra dated July 22, 1969 and addressed to P.S.I. Palanpur stated that in the early hours of the morning of July 22, 1969, at about 0-30 hours the driver awoke him and informed him that on his way to Tharad from Palanpur and in between Palanpur and Deesa he met with an accident with a jeep in which three persons were travelling. He also told him that he was driving at a speed of 50 k.ms, per hour and gave proper light signals to the jeep which was coming from deesa side he also mentioned that he was driving his vehicle maximum to his side giving way for the jeep to pass. In spite of his best efforts the jeep came with full head lights on and collided with the winch truck. He also told him that he stopped his vehicle immediately and rushed to help the injured person, he stopped their second vehicle laboratory truck GTA 5522 driven by his colleague and which was coming at a little distance behind him. They put the injured persons into the laboratory truck and brought them under the guidance of Shri Patel to the Civil Hospital, Palanpur. He also told him that after reaching the hospital, Shri Patel told him and his other colleague to go back and proceed to their destination. Accordingly he told him the and his other colleagues left the hospital and proceeded Tharad their destinat, on with their vehicles. After reaching tharad drill site driver parked his vehicle there and came to drill site the accommodation guest house, to report the matter to him as stated above. Thereafter in the last three lines it is mentioned that he asked the driver the offending truck whether he had informed the police of the accident to which he replied m negative. This officer had brought the driver to the palanpur Police Station to inform the police about the accident therefore the intrinsic evidence of the contents of these reports makes it abundantly clear that the O.N.G.C. officers in charge of these vehicles had immediately enquired of the driver as to whether he had contacted the police and then filed statutory report as required under Section 89(b) and they had come to give reports Exs. 105 and 106, stating the entire circumstances of the accident between their own offending truck and the jeep as per the immediate verion of the driver after the accident. No doubt the aforesa hers on maybe he version by way of expulcation for making out the false case that he had rendered help to the injured persons and that he not negligent but the first version given out by the O.N.G.C. authorise as per the statutory duty under Section 89(b) must be treated asan admission in statutory report to the police. The learned Tribunal was wholly in error m treating these two reports as mere police statements during the course of investigation under Section 162, Code of Criminal Procedure and in ignoring them as of no evidentiary value.
6. The legal position in this connection is very well settled. In Bharat Singh v. Bhagiralhi A.I.R. 1966 Supreme Court 404 at page 410 their lordships pointed out that admissions when they are to be used against the person making them should be clear and they are substantive evidence by themselves in view of Section 17 and 21 of the Indian evidence Act, though they may not be conclusive proof of the matters admitted. Admissions duly proved were admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appear-ring as witness was confronted with those statements in case it made a statement contrary to those admissions. Their lordships in terms pointed out that the purpose of contradicting a witness under Section 145 of the evidence Act was quite different from the purpose of proving the admission. Admission was substantive evidence of the fact admitted while a previous statement used to contradict a witness did not become a substantive evidence and only served the purpose of throwing doubt on the veracity of the witness. Their lordships also made it clear that what weight should be attached to the admission made by a party was a matter different from its use as admissible evidence. In Basant Singh v. Jamki Singh : 1SCR1 their lordships restated this position by pointing out that not only the admissions in the pleadings were admissible as evidence against the person making the admission but so far as our law was concerned, Section 17 of the evidence Act, 1872, made no distinction between an admission made by a party in a pleading and other admissions. This might be used as evidence against him in other suits but it cannot be regarded as conclusive and it was open to the party to show that it was not true. In view of this settled legal position we can hardly accept Mr. Mehta's contention that such an admission could not be used against O.N.G.C. by relying on the provisions of Section 145 of the Evidence Act. O.N.G.C. was a party to this litigation and it had made no attempt for rendering any explanation in this connection by examining any witness on its behalf. As earlier pointed out, the O.N.G.C. in its written statement had pointed out various records which would show that this accident was the result-of the contributory negligence not only of the deceased but also of respondent No. 7 Mr. Patel also. All these alleged records are kept back. Even the log book of the offending truck which a public authority like the O.N.G.C. must be having has not been produced. In Hiralal v. Badkulal : 4SCR758 their lordships had reiterated the salutary rule which was enunciated in Murugesan Pillai v. Gnana sam-Bandha Pandora Sannidhi A.I.R. 1917. P.C. 6, in the following words:
A practice has grown up in Indian Procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the courts the best material for its decision. With regard to third parties this may be right enough they have no responsibility for the conduct of the suit, but with regard to the parties to the suit, it is in their lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.
That is why in State of Punjab v. Modem Cultivators A.I.R. 1966 S.C. 17 at page 19, relying upon the aforesaid Privy Council decision in Murugesan Pillai A.I.R. 1917 P.C. 67 their lordships pointed out that in such negligence Action when the defendant state had a large number of canal officers and there was regular office in charge of the canal to which various reports concerning the breach had been made and when none of these report was produced at the hearing, it was obvious that in an organisation like the canal office, reports and other documents must have been kept to show how the breach occurred and what was done to stop it. It was observed that if such documents were not produced an inference could be legitimately made that if produced, they would have gone against the case of the defendant, that is, they would have proved that the defendant had been negligent. Their lordships refused to accept the suggestion that the documents were destroyed arid proceeded on the footing that they had been deliberately withheld and in these circumstances adverse inference was drawn in the case that the defendant-state was negligent in the management of the canals by reason of this fact of non-production of these documents. Even in the concurring judgment, it is pointed out at page 26 that in such cases it can be legitimately presumed that the state was negligent inasmuch as they deliberately suppressed evidence in their possession which could have established negligence. In view of this settled legal position it is obvious that when the claimants have led evidence of the injured person on the jeep which is clearly corroborated by the impact marks on the offending truck and the victim jeep which tell their own story and when the independent statutory inspector after on the spot inspection had made statutory reports it Exs. 90 and 91 in respect of the offending truck and the jeep in question as being involved in the same accident, and when the O.N.G.C. officers in charge of the vehicles have in their statutory report under Section 89(b) of the Act, made in their own language clear statements to the P.S.I. pathan categorically admitting this accident as having taken place between the offending truck and the jeep in question at the relevant time and place of the accident, and the said admissions are not explained by any evidence led by O.N.G.C. which has admittedly withheld all the relevant records in this connection, and even the offending truck driver had not stepped in the witness box, this is a fit case where the tribunal ought to have drawn adverse inference against the O.N.G.C, that if the relevant records mentioned in the written statement were produced, they would have conclusively established the identity of the offending truck which dashed with this victim jeep in question. In any event, on this evidence there can remain no doubt as to the identity of the offending truck, because the jeep and the truck by their matching damages and impact marks would tell their own story which when appreciated in the light of these statutory reports would conclusively establish this fact on the aforesaid evidence.
7. On the aforesaid evidence of prajapati, if it is read in the light of this evidence along with the scene of the offence Panchnama, Ex. 96 and the Panchnama of the jeep, Ex. 95 which has been proved by the panch witness Parsottamdas Ex. 93, Actionable negligence has been clearly established by the claimants.
8. The panchnama of the scene of the offence, Ex. 94, reveals that the road in question which at this place is taking a turn west to east is 24' wide road with 6' Kutcha shoulders on both the sides. The blood spot was found within 4 ft. Distance after leaving 2 ft. Towards north from this centre of the road so that after the blood there was a space of 5' - 8' to the north of this tar road. The iron rod of the hood of the jeep was lying in the north eastern direction with a cloth strip at a distance of 4 ft. From the blood spot. At about 3 ft. On the north west there was the iron rod. The jeep was found in the south east corner at a distance of 36 ft. On the kutcha road. This was a straight even road. The jeep panchnama, Ex. 85, reveals various impact marks on the jeep. On the right hand jumper near the number plate right hand rim was bent. Right hand tyre was burst and tube had burst. The mudguard on the right hand side bore marks of impact and had been bent and had taken red colour. The right hand bonnet portion had been bent with the right hand front light. Portion of the bonnet frame, mudguard and jumper had been broken. Right hand foot board had been bent. It was also stated that near the front right wheel, strip under the machine had been bent and there was breakage of the differential portion. The jeep had gone in a zigzag way as there were wheel marks and oil had leaked from 36 ft. Distance.
9. The aforesaid evidence completely corroborates the evidence of the injured witness Maganlal Prajapati that the accident had taken place due to the collision of the offending truck and the jeep. It appears that the offending truck of O.N.G.C. was much heavier and was of such high horse power as compared to the small jeep. The jeep was a small vehicle. The offending truck was a Russian Vehicle and, therefore, the damage marks were on the off side right corner of the O.N.G.C. truck. The truck grazed so that the right tyre of the jeep had burst as a result of which the jeep had lost control and gone 36 ft. To the kutcha road in the southeast corner.
10. The material question which, therefore, arises is as to whether there was sole negligence or composite actionable negligence or contributory negligence so that the liability could be apportioned between various responsible parties as per their responsibility. As earlier pointed out the negligence was alleged of the deceased as well as of respondent No. 7. The state in its written statement, Ex. 59, has categorically pleaded contributory neglect of the deceased by taking seat in front in such a jeep where the seat is meant for only two persons including the driver and not for three persons. At the outset we would consider the technical objection raised by Mr. Patel, on behalf of respondent No. 7. It is surprising that Mr. Patel for the jeep driver, respondent No. 7, goes to such extreme extent to disown responsibility of this jeep driver by contending that there was no plea nor any issue about his negligence. This plea is based on complete misreading of the relevant pleadings and the issues, Tort-feasors may take even inconsistent pleas and that is how the O.N.G.C pleading should be read as disowning that their truck was involved in the accident and at the same time pleading that if any accident had happened as per their record it was due to the contributory neglect of the deceased as well as the jeep driver. Even the claimants had not given up their case as vehemently contended by Mr. Patel against respondent No. 7 because in the claim petition it was in terms stated that even though as per their plea the accident was caused due to rash and negligent driving of the truck driver, but if some negligence on the part of the jeep driver was proved, the owner of the jeep car and their driver had been impleaded so that the liability could be ascertained and fixed by the Tribunal. That is why the tribunal raised specific issue arising from these various pleadings, as regards the pleas of the various opponents as to whether they were not liable, and as regards the deceased being unauthorised occupant having been given lift in the jeep and as regards his contributory negligence. Issue No. 7 was as under: 'which of the opponents are liable and for what amount, if any?' The Tribunal had already in issue No. 2 covered the ground alleged specifically by the claimants that the accident took place due to rash and negligent driving of the truck driver, opponent No. 3, but in the wider issue No. 7 the tribunal had kept in mind the relevant pleadings of the opponents and had raised a specific issue as to which of the opponents was liable and to what extent. In fact, respondent No. 7 was represented by a lawyer who had completely met this specific case by cross-examining the relevant witnesses when he chose to do so. In Union of India v. M.P. Sugar Mills : 3SCR75 their lordships have explained the aforesaid rule so vehemently relied upon by Mr. Patel as laid down by their lordships of the privy council in Siddik Mahomed v. Mt. Saran where their lordships have observed that 'no amount of evidence can be looked into upon a plea which was never put forward'. Scope of these observations was held to be well considered in the earlier decision in Nagubai Ammal v. B. Shama Rao : 1SCR451 , where the law has been stated as under:
The true scope of this rule is that evidence let in on issues on which the parties Actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. The rule applicable to this class of cases is that laid down in Rani Chandra Kunwar v. Chaudhri Narpat Singh (1906) 34 Ind. App. 27 (P.C.)
In view of this settled legal position we must clearly overrule the contention of Mr. Patel on this point because respondent No. 7 had at all relevant stages known the case he had to meet with and had engaged an independent lawyer to defend himself and no prejudice whatever has been caused to him. It is true that the injured witness may have all his sympathies with this jeep driver respondent No. 7 but the claimants were never giving up their claim by clearly pleading that even this jeep driver and his master were responsible, if on evidence it was found that to some extent the jeep driver had also contributed by his negligence. That is why respondent No. 7 was in terms impleaded and wider issue No. 7 had been framed by the tribunal in addition to issue No. 2 even to cover Actionable negligence of the jeep driver, besides even the contributory negligence of the deceased. Being a Government officer, respondent No. 7 was clearly on the horns of a dilemma and he deliberately did not go into the witness box, just like the offending truck driver for reasons best known to them. But that does not enable this respondent No. 7 to raise any such technical objection that he never knew the case that he had to meet with or that the claimants had abandoned their claim against respondent No. 7 or that there was any prejudice caused because no specific issue was raised as to the negligence of respondent No. 7 In our recent decision where my learned brother spoke for both of us in F.A. No. 552 of 1972 decided on June 17, 1975 Kantilal J. Thakar and Ors. v. Kanji Nathubhai and Ors. We have agreed with the ratio in this connection by the Division Bench of the Maharashtra High Court in Basarlal Lakshamichand v. M.A.C. t greater Bombay : AIR1970Bom337 . The relevant provision in Section 110-A (2) of the Act and Rule 291 made under Section 111A in connection with the application for claims for compensation and the prescribed form No. Comp. A had been interpreted and it was held that they did not require any parties to be mentioned in the title of the application for claims of compensation. It was in terms pointed out that all the relevant facts are in this connection left to be ascertained by the claims tribunal which has been entrusted with more serious duties of finding out all the parties who might be liable to pay compensation by recording evidence to be produced by the parties concerned. Formal defect of failure to mention appropriate names of the parties who would be liable to pay ultimately compensation to the claimant was never intended to defeat the claims filed under the Act. Therefore, so far as the M.A.C.T. Proceedings are concerned, such technicalities could never enable the joint tort feasor to escape, even-though some claimants even show some sympathy towards one of the tort-fussers. If the relevant issue had been seriously controverted because of the other tort-feasor coming in the picture, the relevant question about composite Actionable negligence and as to which of the tort-feasors is liable and to what extent would always be an issue which the claims Tribunal has got to decide in such cases by considering the entire evidence in view of this aforesaid specific duty under the Act. Therefore, we find no substance in the preliminary objection raised by Mr. Patel for respondent No. 7 in this behalf.
11. So far as the question of such collision between the two fast moving vehicles is concerned, the entire legal question has been elaborately settled by us in the decision in L.I.C. V. Legal Representatives of the Deceased Naranbhai 13 G.L.R. 920, at pages 934 to 936. At page 934 it was in terms pointed out that the doctrine of last opportunity which was so vehemently sought to be invoked by Mr. Vidyarthi could never apply, especially where in such cases of fast moving vehicles the moment of impact was not more than a split second after both the drivers had become aware of their respective positions for a clear cut line could be drawn as in situations similar to davies case-Davies v. Mann 10 m. & m. 546 where there was a static donkey owner situation so that it could be clearly stated that negligence of one could become inoperative and there would be no contributory negligence at the time of the accident or collision. That is why we had referred to the salutary observations by denning L.J. In Davies v. Swan Motor Co. (Swansea) Ltd. 1949 (2) K.B. 291 at page 321 that as a doctrine of law, this doctrine of last opportunity was dead long before the Law Reform Act, even though after the Law Reform (Contributory Negligence) Act, 1945, it remained in use by some as a practical test. It was not a principle of law but only the test of causation. It was even found to be a fallacious test. After the decision in the value (1922) (1) A.C. 129 and Swadling v. Cooper 1931 A.C. 1 the doctrine fell into disrepute and was superseded by the simple test. What was the cause or what were the causes of the damage? Therefore, even where the plaintiff contributed some negligence under the developed common law he recovered reduced damages even though he had last opportunity of avoiding damages. The learned Judge also pointed out at page 323 that was a fallacy in this doctrine because as a proposition of law it could never be supported by saying that negligence which created a dangerous obstruction ceased as soon as the driver of the on coming vehicle saw it. That view could not be accepted because the plaintiff's negligence in leaving the obstruction was a continuous negligence, which continued after the on coming driver saw it. The learned Judge pointed out that another test of contributory negligence of legal duty is as fallacious as that test of last opportunity, because the real question is not whether the plaintiff was neglecting some legal duty but whether he was acting as a reasonable man with reasonable care. Therefore, speaking generally, the learned Judge observed at page 326 that the crucial questions in road accident cases are: (1) what faults were there which caused the damage? (2) what are the proportions in which damages should be apportioned having regard to the respective responsibilities of those in fault? That is why in a collision between two vehicle drivers the omnibus driver because he attempted to overtake in a narrow lane on a bond, without warning and before receiving a signal, the dust lorry driver because he turned suddenly across the road without making proper use of his mirror and without giving sufficient warning of his intention to do so, both were held liable, and the damages were apportioned between the taxicab and the lorry driver in proportion of 2:1, and because the plaintiff had also to some extent contributed, the plaintiff's quantum was reduced by 1/5th. Thus in such a case of composite and contributory neglect damage was held to be caused by faults of all the three and had been property apportioned. It was then pointed out that in the case of Jamnagar Motor Transport Union v. Representatives of Thakar Gokal C.A. No. 551 of 1963 decided on January 14, 1966, it was found by their lordships that both the buses were trying to pass each other at a point where the road was admittedly narrow at a speed at which the drivers were unable to keep full control of the vehicle, and the only reasonable conclusion which could be arrived at on the evidence was that the drivers of both the buses were negligent in the absence of any proper pleading and scanty material in that connection, it was also found that there was no contributory negligence of the plaintiff because of his hand protruding from the window of the bus. Therefore, it was held that the drivers of both the buses having been equally responsible for the accident but the owners were jointly and severally equally liable to pay damages to the dependents of the deceased. At page 936, the usual plea trotted out in such cases was considered from some observations of the Privy Council in Toronto Railway Co. v. King 1908 A.C. 260 at page 269 that the traffic in the street would be impossible if the drivers of each vehicle did not proceed more or less upon the assumption that the drivers of all other vehicles would do what it was their duty to do, namely, observe the rules regulating the traffic of the streets. These observations were explained because of the distinction made between the crossing in front of an approaching train and crossing in front of a tramcar bound to be driven under regulations at such places as the junction of the two roads. That is why we had pointed out the salutary observations of lord due part at page 72, in London Passenger Transport Board v. Upsen 1949 (1) A.E.R. Page 60 that if the possibility of the danger emerging is reasonably apparent then to take no precaution is negligence but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man then there is no negligence in not having taken extraordinary precautions. That principle applied to all cases of negligence which consisted of omission to take due care for the safety of others. The learned lord in that context also observed that a prudent man would guard against the possible negligence of others when experience shows such negligence to be common. The driver is never entitled to assume that people would not do what his experience and common sense teach him that they are in fact likely to do. That is why it was pointed out how difficult it is in such cases of two fast moving vehicles colliding with each other to draw any clear line, so that it can be held that the negligence of one vehicle was almost inoperative.
12. In the present case the evidence of prajapati makes it very clear that even the jeep driver had been conscious of the respective position of his jeep and the on coming truck of the O.N.G.C. from a distance of almost two furlongs, and that is why even though this offending truck was coming almost in the middle of the road with headlights on, after having become conscious of the danger, the jeep driver had dimmed his lights, kept the jeep on its left and had even sought to reduce his speed from 30 to 18 k. Ms. This itself makes it abundantly clear that this was a case of composite negligence where no line whatever could be drawn when the collision took place between these two fast moving vehicles on such a wide 24' road with 6' shoulders, because even the jeep driver who had become aware of the respective position of the two vehicles and who was conscious of the offending truck coming with headlights on, had a duty to swerve that vehicle on the right as there was clear absence of any traffic on this straight highway road. The decision cited by Mr. Vidyarthi in connection with the sudden emergency situations as in Dwarkanath Rai Mohan Chaudhuri v. The River Steam Navigation Co. Ltd. 20 Bom. L.R. 735 (P.C) where the bywell castle, (1979) I.R. 4 P.D. 219 rule would be applicable could hardly be invoked in such a situation. In these cases in a moment of extreme peril and difficulty one cannot expect perfect presence of mind, accurate judgment, and promptitude. A reasonable man as observed by lord Macmillon in Glasgow Corporation Case, 1943 A.C. 447 must be free from both the defects of over-apprehension or over-confidence. Therefore, if one was conscious of the respective position of the two vehicles from such a large distance., his common sense and experience would teach him not to be overconfident so as to persist in his way, while seeing the other offending truck coming in the middle of the road with headlights on and not taking his jeep towards the clear left hand side on the kutcha road. This is really a case of dilemma situation. As pointed out in Tart v. G.W. Chitty and Company Ltd. 1933 (2) K.B. 453 at page 457 and in Baker v. D. Longhurst & Soni Ltd. 1933 (2) K.B. 461 when a man drives a motor car along the road, he is bound to anticipate that there may be people or animals or things at any moment, and he is bound to go not faster than will permit of his stopping or deflecting his course at any time to avoid anything he sees after he has seen it. If there is any difficulty in the way of his seeing, as for example, a fog, he must go slower in consequence. Even in such a collision between two fast moving vehicles there would be clearly a dilemma situation, either the driver did not keep a sufficient look out or that if he did keep a good look out, possibly he was going too fast for the look out to be kept so as to avoid such collision. It was a night journey and specially when the jeep driver had seen such a large truck coming almost in the middle of the road with full headlights on, he could have if he vas on the proper look out, as deposed by Mr. Prajapati, taken ordinary precaution to swerve his vehicle to the left by not persisting in his driving in the tar road for avoiding collision with this on coming truck. Therefore, on the aforesaid evidence there can be no other conclusion than the one that either the jeep driver was not keeping sufficient look out or that he was going too fast for the look out to be kept so as to avoid any such collision, and in either case, he was also negligent alongwith the offending truck driver. No doubt in such cases the offending truck driver had greater duty and the larger responsibility because of the larger size of his vehicle and the higher power of his engine compared to the small jeep vehicle with small horse power of its engine. Also because of the more substantial neglect of this truck driver on the facts of this case as he had been travelling almost in the middle of the road with full lights on, he must share a greater portion of the blame in the causation of this accident as compared to the jeep driver. But in any event, on the facts of this case, we cannot assess contribution less than 1/4th by the jeep driver. Therefore, just apportionment of the contribution between the two tort-feasor should be 75:25 or 3/4th of the O.N.G.C. truck driver and 1/4th of respondent No. 7 the jeep driver.
13. As regards the contributory neglect of the deceased, a plea has been raised because of the fact that this was a jeep vehicle where in front there are only two seats. The assistant motor vehicles inspector Mr. Jani has deposed that the front seats in the present jeep car were about 60' in length and 15' in breadth. Between the two seats in the jeep car in the front there was a device for shifting the gears there was one another cover on the gear box itself on the top portion and that cover was of circular shape with a radius of 6 to 8 inches. He further deposed that as per rules only one driver and one another passenger were allowed to travel in a jeep like the present one. If three persons wanted to occupy the jeep, including the driver, the other two persons had to occupy and share the remaining seat. He also deposed that the two persons over and above the driver could not comfortably seat in the front seat in such a type of jeep car. If there were two fat persons in the front seat over and above the driver, some portion of the body of the person sitting on the right hand side was likely to protrude outside the body of the jeep, but it depended upon the fatness of such person. He also deposed that if such a person was little absent minded and if the collusion occurred between the two vehicles coming from the opposite directions, normally the man sitting on the right side would fall down on the ground. There was no other contrivance by which a person sitting on the right hand side could take support while sitting on that side. If a person was sitting without having any support by his hand, he was likely to fall down on the ground when a collision occurred between a jeep and a motor truck coming in opposite direction. The inspector no doubt stated in the cross-examination of opponent No. 7 that if there was no obstruction of any kind to the driver of such a jeep, it would not be a legal offence if two persons over and above the driver sit in front in the jeep car. He also deposed that the seat of the driver was normally 1/3rd in length than the seat for the passengers in the front of a willys jeep. In fact, according to rules, the seat for a driver must be 30' x 15'. The relevant rule has not been pointed out to us which prohibits three persons occupying the front seat including the driver of the jeep. The fact, however, remains that the seat of the driver being 30' x 15' the other persons would have to occupy the other seat which is left of 30' x 15'. Even though prajapati's evidence makes it clear that the deceased Maganlal Mistry was thinner than prajapati who was of 140 ibs with waist of 47', one thing is clear that when the other two persons occupied the front seat of the jeep, even if it had not contravened any statutory rule, they were exposed to some greater risk by sitting in the fashion, of being thrown out in case of collision. The driver of the jeep would have also same difficulty to change or control his gears between the two seats in front. In Jones v. Livox Quarries Ltd. 1952 (Vol. 2) Q.B. 608 denning L.J. For the court of appeal at page 615, pointed out the difficulty in solving the troublesome problem of causation because although the contributory negligence did not depend on duty of care, it did depend on the forseeability. The learned Judge pointed out that just as Actionable negligence required the forseeability of harm to others, so contributory negligence required forseeability f harm to oneself. A person was guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not Act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. Therefore, it was held that once negligence was proved then no matter whether it was Actionable negligence or contributory negligence, the person who was guilty of it must bear his proper share of responsibility for the consequences. The consequences did not depend on forseeability but on causation. At page 616 it was further pointed out that there was a distinction where a man's negligence may be a mere part of history or where it is so mixed up with the injuries that it cannot be dismissed as mere history as in that case, where his dangerous position on the vehicle was really one of the causes of his damages just as in Swansea case. At page 617 the whole position was summarised by saying that it all comes to this:
If a man carelessly rides on a vehicle in a dangerous position, and subsequently there is a collision in which his injuries are made worse by reason of his position than they otherwise would have been, then his damage is partly the result of his own fault, and the damages recoverable by him fall to be reduced accordingly.
This principle would be clearly applicable in the present case because the deceased by occupying extreme right hand seat together with the injured witness prajapati who was in the middle on this single 30' seat, had exposed himself to some greater risk in case of such collision. His negligence in occupying such seat exposing him to greater risk of fall in case of such collision was not merely a part of history but it was really mixed up with his injury and, therefore, it must be held that the deceased had also contributed to some extent. That could not be said of the injured person prajapati who was occupying middle seat and who has even after the accident fallen in the jeep itself and was injured only by the rod of the hood canvas, and that is why such plea of contributory neglect has rightly rot been raised in this connection. In any event, after perusing the whole record, especially when there is no evidence led by these two tort-feasors by stepping in the witness box, we are convinced that the contribution of the deceased although it cannot be as low as only 5% or 1/20th, it must be between 1/12th and 1/10th or 8 to 10%.
14. Thereafter the material question which arises is as to the liability of the owners of these two tort-feasors the driver of the said jeep respondent No. 7 and respondent No. 3 driver. The persons in whose names the offending truck and jeep were registered viz. The superintending geophysicist and the executive engineer have no doubt been impleaded as opponent Nos. 1 and No. 5 but they would not be really liable. So far as the O.N.G.C. truck driver I concerned, the truck driver having been held liable for negligence, the O.N.G.C, as the owner of the truck would clearly liable. So far as the state is concerned, it wants to be tend on the ground that respondent No. 7 had no authority to give any such lift to these two persons. At the hearing Mr. Vidyarthi wanted id read the hand book of general circulars where circular No. 68 referred to some instructions where for the Government vehicles when used for some private purpose for the family or friend of the Government servants, some reimbursements by way of charges would have to be made. These relevant circulars were not brought on the record even though this categorical plea is raised in the written statement of the state arid although the relevant issue is framed, if there was any such prohibition to make the lift unauthorised. As no evidence is led iii that connection, we cannot allow Mr. Vidyarthi to argue ally such case by imagining any such prohibition because it is a state vehicle, Mr. Prajapati has no doubt stated in his evidence that normally the deputy engineers were provided with a jeep car for Government work. But that does not mean that there was any such prohibition on the deputy engineer giving lift even to such prominent persons who were partners in the Banaskantha construction and were P.W.D. Registered contractors. We have nothing on record as to what were the reasons which influenced Mr. Patel respondent No. 7 to give this lift by inviting these two persons on this Government vehicle which he was using for the Government purpose or master's purpose for visiting site near about Deesa. Therefore, we cannot for a moment assume, as contended by Mr. Vidyarthi that the two persons who were given lift by respondent No. 7 in the jeep car were no better than trespassers and as in fact they were clearly in the position of invites. The material question which always arises in such cases when there is collision by negligent driving of the driver would always have to be resolved by reference to the fact that whether at the time of negligent driving which injured these persons, he was driving the vehicle for the master's purpose or on the frolic of his own. Therefore, even if he had given a lift by inviting the passengers injured by his negligence while driving was for the master's purpose he could surely claim damages from the master. The legal position in this connection has been exhaustively considered in the decision in L.I.C. v. The Legal Representatives of The Deceased Naranbhai 13 G.L.R. 920 at pages 930-932, where their lordships' decision in Sitaram v. Santanprasad A.I.R. 1966 S.C. 1967 was considered which settled the law by laying down that a master was vicariously liable for the Acts of his servant Acting in course of his employment. For the master's liability to arise, the Act must be a wrongful Act authorised by the master. The driver of a car taking car en master's business made him vicariously liable if he committed an accident. It was pointed out that it was equally well settled that if the servant, at the time of the accident, was not Acting within the course of his employment but was doing something for himself, the master was not liable. It was pointed out that the courts had in such cases always drawn a presumption that a vehicle was driven on master's business and by his authorised agent or servant so that this vicarious liability on social justice principles could always be invoked unless the presumption was rebutted. The extension of this principle on a wider interpretation of the terms 'scope of employment' and 'scope of agency' was not approved, to cases where the Act of the servant was merely for the master's benefit but it was in terms held that the Act must be done only in course of employment or in the scope of agent's authority. That is why at page 1706, their lordships pointed out from the English decisions settled legal position that the mere fact of consent by the owner to the use of a chattel was not proof of agency, but the purpose for which the car was being taken down the road at the time of the accident must be either that it should be used by the owner or at least for the joint purposes of the owner and the driver. Observations in Ormred v. Grossville Motor Services Ltd. 1953 (2) A.E.R. 753 of lord denning L.J. Were considered where it was held that if the vehicle was being used wholly or partly on the owner's business or for the owner's purposes, the owner was liable for negligence on the part of the driver. The owner only escaped liability when he lent it or hired it to a third person to be used for the purposes in which the owner had no ' interest or concern. We need not consider in this decision the other tests which were referred to us and which had been subsequently evolved of genuine representative capacity as in the present case it is obvious that' respondent No. 7 the jeep driver Mr. Patel was driving the state jeep for the master's purpose as he was returning after visiting the site and as during the course of his employment he had given lift to these two persons and had injured them by his negligent driving, the master i.e., The state would be clearly liable in view of the settled legal position. In F.A. No. 250 of 1972, decided on August 5, 1974 Hiraben Wd/of Bhogilal Dahyarram v. Amrutlal Ambalal Patel and Ors. By both of us, we had followed the earlier decision of this Court in F.A. No. 106 of 1972 decided on April 9, 1978 Pradip Chinubhai and Anr. v. Maniben Wd/of Khimji where it had been in terms held that Section 60b of the Motor Vehicles Act, 1939, which permitted the authority to cancel the permit of the vehicle if the holder allowed the vehicle to be used in a manner not authorised by the permit could not be invoked because the court had, not to go into the question whether taking of such passenger by the driver of the vehicle was illegal or not. It was the owner who had to decide whether to run the risk or not. If however the risk was taken, the owner would be liable for the damages. The decision in Sitaram v. Santnuprasad A.I.R. 1966 S.C. 1967 was in terms followed by pointing out that the presumption would always be raised by the Court that the truck was driven for the master's purpose and the driver was Acting in the scope of employment unless the presumption was rebutted. Therefore, it was in terms held any evidence to show that the owner had not authorised the driver to take passengers for payment on the truck in question, this salutary presumption raised by the courts in such cases would not be rebutted. It was further pointed out that the matter can be looked at from another angle. If the driver had while driving the vehicle on the master's business killed a pedestrian, the master would have been liable in damages to the heirs and legal representatives of the deceased. Merely because the deceased had been sitting on the truck of the master on the master's business, it does not make any difference if he kills a pedestrian or one sitting on the truck.
15. Mr. Vidyarthi, however, vehemently sought to reply on the decision in Twine v. Trans Express Ltd. 1946 (1) A.E.R. 202 which could hardly be invoked because that was a case where the person was a passenger and, therefore, he being not a 'neighbour' no duty of care was owed to him by the driver of the van and, therefore, as the employer could not reasonably anticipate presence of such passengers in the van at the time and place of the accident, there was no liability of the owner. The Court of appeal had refused to consider such a case, which arises before us, where a passenger had been picked up by the driver to whom no contrary instructions had been given. Besides, in that case, the employer had taken further reasonably practical step by putting a notice in the van to secure that there should be none in the van except the duly authorised person and, therefore, it was held that the employer could not reasonably anticipate that there must be this passenger in the van at the time and place of the accident and so, there would be no duty to take care or any liability in the negligence Action. Similarly, the decision in Conway v. George Wimpey and Co. Ltd. (1952) K.B. 331 also could not help Mr. Vidyarthi for the simple reason that the driver had express instructions that he was to carry only the defendant's men and, therefore, the driver's authority having been duly limited and this limited authority having been specifically brought to the notice which was affixed in the vehicle and of which the driver was duly aware, the owner was exonerated. That is why in Stone v. Taffe 1974 (3) A.E.R. 1016, the court of appeal held even in the context of an Act of a servant prohibited by the master that a prohibition by an employer of what a servant might or might not do was not by itself conclusive of the scope of his employment against third parties injured by the servant. But the injured could not hold the employer liable where he himself knew of the prohibition and had an opportunity to avoid the danger of the injury from the prohibited Act before he exposed him to the danger or where the employer had proved that the prohibition was likely to be known to the injured person. Therefore, in view of this settled legal position when the state has led no evidence whatever of any prohibition to the driver or such prohibition being known by those two persons who were injured, the state could never claim exoneration in view of the aforesaid settled legal position. Therefore, alongwith the two tort-feasors, both the state and O.N.G.C. Would be clearly liable, although the apportionment would be as indicated by us, and even the claimants' quantum of the claim would have to be reduced to the extent shown by us, because of the contributory neglect so far as the deceased is concerned. We may at this stage say that there is no dispute so far as the opponent insurance company is concerned of the truck, opponent No. 4, whose liability would be limited to the extent of Rs. 20,000/- for both these victims for the same accident, as nothing contrary has been pointed out by the claimants to show that the tort-feasors had undertaken larger liability.
16. Coming to the next question of assessment of damages, the deceased was a man aged 50 years. As rightly found by the tribunal, he had a large family of three sons and six daughters and his wife, out of which only one was married daughter and one son was a detent. There is a history of longevity in the family as deposed by the brother Dalpatlal, Ex. 108, and the injured witness prajapati, because the mother even at the age of 75 is living and the father had expired at about 70. The deceased was a healthy person with no vice whatever. He was a prominent citizen and was president of the samaj, rotarian and ex-municipal councillor and even the Bank of India agent Maheshchandra Bakshi, Ex. 101 has deposed that the bank of India had extended cash credit facilities, which is extended only to some businessmen in special circumstances to the tune of Rs. 10,000/-. Special facilities are extended to the persons of capital, credit and character after making due inquiries. In the present case relevant evidence about the deceased Maganlal Mistry's earning capacity, is of his brother Dalpatlal, Ex. 108, and son Dhanvantrai, Ex. 121 and the partner in Banaskantha construction company Kantilal Chimanlal Mehta, Ex. 46, alongwith that of the injured witness Prajapati. The income tax assessment orders, Exh 109 to 113 have been produced alongwith the two orders for two further years, Ex. 118 and 119 of the Banaskantha construction partnership. The Tribunal had assessed income only at Rs. 5,000/- by making erroneous assumption that in the hue firm the deceased was only one sharer, and that because there was an entry of some interest from banaskantha construction, he must be only a financial partner. Both these assumptions of the tribunal are contrary to the record because the deceased had a H.U.F. Firm of him and his sons and some entry of a small amount of interest in a partnership account would not show that he was only a financial partner. In fact, all the partners Prajapati and Kantilal Mehta had categorically deposed that the deceased was a managing partner of the business. The deceased was energetic man who had personally built up the venture of Banaskantha construction which had come up from 1955-56 and wherein P.W.D. ContrActs were taken up. It is true that the evidence of Kantilal Mehta disclosed that the land of that firm and machinery had been sold and the business had almost come to a standstill as only one contract was taken for the last three years from 1967 and, therefore, business under that firm name might have come to a standstill or might have been stopped even during the life time of the deceased or just after as averred by the claimants. The fact, however remains that the deceased had earning capacity of establishing all these business ventures. Besides, family business carried on with his sons, where none of the sons was working and he himself was the sole working man in the business of hardware, paints, on which the tribunal had relied for the net income of Rs. 5000/-. Even as per the income-tax returns the deceased had large business in various names. When businessman's earning capacity has to be determined, it can be determined only on some long term basis and not by solitary fluctuation of some one or two years income. Both Mr. Vidyarthi and Mr. Mehta have vehemently argued that the books of account were deliberately suppressed and nothing was brought on record to show the loss by this accident, as no books of account were produced after the death of the deceased. When the earning capacity of the deceased has to be estimated, it has to be judged by the performance of the deceased on some average in the past years and not by a single year's performance. This was not a case where the deceased was working as a capitalist partner and so his capital investment having remained after his death, it would continue to draw some share of earning. It was not money but the man which was responsible for the entire income which the deceased derived all these years by his ability and business acumen. That is why even his partners in terms deposed that he was a managing partner in their business. When we turn to the income-tax orders, H.U.F. orders at Exh. 109 and 110 for the years 2019 and 2020 or 1962-63 and 1963-64 financial years were really of the H.U.F. of the deceased with his sons only. As one son was a dentist and the other son was studying in M.B.B.S. it was obvious that the H.U.F. returns are of his own income and would represent his own earning capacity. In the order at exh. 110 for at. Year 2021 and the financial year 1964-65 there is mention made of the deceased being Karta who has put in a claim for partial partition of H.U.F. moveable capital of the H.U.F. was ascertained at Rs. 54,469/- Which was divided among the five co-parceners and a deed on stamp paper of Rs. 500/- had also been executed. After hearing the co-parceners, the income-tax officer was satisfied that the H.U.F. Was partially partitioned at the end of S.Y. 2020. This note is made on 11th February 1967. Thereaftre, there are other income-tax orders which are individual assessment orders of the deceased for S.Y. 2021 and 2022 for the financial years 1964-65 and 1965-66. In these four years the income as assessed over by the income-tax authorities from 1962-63 to 1965-66 was Rs. 25595/-, 30766, 10924 and 17376 respectively. For the subsequent years, the assessment orders have not been produced, but the partner kantilal mehta has produced assessment orders of the firm banaskantha construction company at Ex. 118 and 119 which clearly disclose that the deceased and other partner prajapati had for the financial year 1966-67 earned profit after considering even reduction in appeal to the tune of Rs. 7690 and 7320, for 31% share each had in the company. As per Ex. 119 for the financial year 1967-68, there was loss to both the partners of Rs. 2294/- Even if we were to assume in absence of any other evidence that this was the only income for these two years, without considering any other income, those assessment orders clearly disclosed that besides banaskantha construction company and the family business the deceased was carrying on other business in various names, and the average income of the deceased for all these years would be to the tune of Rs. 15000/- per year.
17. It was vehemehtiy argtied by the opponents that the Bansakantha construction company having been stopped the earning capacity of the deceased had been seridualy impaired and as the family was earning almost the same income of Rs. 5000/- they were suppressing all the accounts as no lofts would be shown. The whole approach is thoroughly misconceived as it proceeds on the erroneous assumption made by the Tribunal that the deceased was only a financier, and so his retiree invested would continue to have same earning without any loss. The deceased had built up by his down initiative and zeal the various business ventures and therefore by the death of the deceased his whole earning capacity is lost to them. This was the real time for the deceased to reap the benefit of his efforts put in all these years and at that juncture he met with this accident. Therefore, that fact that the banaskantha construction company was dissolved would not be a material criterion, as the deceased was trading in various names and the true position as reflected from the income-tax orders for such a large period would clearly reveal that his average earning capacity was to the tune of at least Rs. 15000/-.
18. Something was urged on the ground that from the insurance the family had received a sum of Rs. 61000/- but evidence was that Rs. 11000 was by way of paid up policy and the rest was insurance amount where only one premium was paid by the deceased. Even in this connection the legal position is well settled after our aforesaid decision in L.I.C. v. L.R. of the Deceased Naranbhai 13 G.L.R. 920 at page 937. We have already settled this question by holding that it was a collateral benefit in First Appeal Nos. 159-160 of 1968 decided on November, 3, 1971. (Jaipur Golden Transport and Co. Ltd. v. Keshavlal Mangalal and Ors.). There the entire legal position is considered as enunciated in the latest decision by the house of lords in parry v. Cleaver 1969 (1) A.E.R. 535 where it was accepted us a settled principle of common law, which was followed not only in England but in all other common law jurisdictions after Bradburn's case 1874-80 all. E.R. Reprint 195, that the insurance policy amounts were collateral benefits which the deceased had bought with his own money. It was a benefit derived by way of prudent savings effected for his own benefit under a contract by the injured party whose benefit could never go to the tort-feasor. It was only a like which can be deducted from the like and, therefore, intrinsic nature of the payment must be considered before any such deductions could be made. Therefore, this collateral benefit could never be deducted from the compensation amount as per the settled legal position. Besides, even if we were to take into account some aspect of acceleration of interest of the family, in the various properties of the deceased or in the insurance moneys and also the personal expenses of the deceased which in case of such large family would not exceed Rs. 2000/- a year and even same income-tax consideration is also made, the claim which is now sought to be made is so low that even all these considerations would not have affected the claim made. Even if we were to capitalise the datum figure of minimum of Rs. 8000/- per year on the purchase factor of 12 years as the settled multiple the amount of damages would work out at Rs. 96000/- which along with the conventional amount of Rs. 3000/- for loss of expectation of life as per our earlier decisions would come to Rs. 99000/-. This 12 years multiple even at the age of 50 had been adopted by the house of lords for a man of 50 in Taylor v. O'Connour 1970 (1) A.E.R. 367 and there would be all the more reason to adopt that multiple as appropriate multiple in the present case in view of the evidence of longevity and as he was a healthy man with no vice whatever. As earlier pointed out by us, we will have to slice down the sum to the extent of 1/12th or 1/10th or about Rs. 9000/- for the contribution of the deceased. But still the claim of Rs. 90,000/- which has been made is just claim which on the facts of the case must be entirely awarded so far as the deceased is concerned.
19. So far as the injured claimant Prajapati is concerned, the medical evidence disclosed that he had a skull fracture which is a fracture on the right parietal bone. According to the doctor, this injured claimant regained consciousness in the morning of July 22, 1969 and he was discharged as an indoor patient after 10 days. Because he had fracture the doctor had advised him rest for one month and not to carry on his normal avocations of life. The doctor has deposed that there would be no difference in the power of remembrance of a person with the injuries that Maganlal Prajapati had. The doctor further deposed that at the time when prajapati was discharged he was in a fit state to do brain work or any other type of work for which no manual labour was required. The doctor had also deposed that he had advised Prajapati to take novalgin tablets if he had any headache. In such cases of pain and suffering, assessment of damages by the cost of novalgin tablets is completely absurd. The injured claimant has deposed that he had remained in bed for six months and his corroborate by the independent evidence of Dhudalal Mangalji Ex. 96, and Kantilal Mehta, his partner, Ex. 116. The injured has also stated that he suffered trolling pain for all time and his agricultural operations and his business has suffered as he had to remain in bed for about 6 months. Agricultural operations were done by the labourers and sathis and without personal management they are bound to suffer. The injured had also said that he wanted to have a contract at ajmer but he could not offer any bid because he could not remain present. His losses would not be capable of easy valuation but one thing is certain that the injured had not suffered a minor injury but it was a fracture of the skull in the parietal bone for which even the doctor had advised him rest for one month and had anticipated trouble and continuous headache for which novalgin was prescribed. The victim is corroborated by independent evidence that he could not do his normal work for six months and he had Actually to remain confined to bed. If we consider the pattern of our decisions where even for minor injuries, as in England 75 or Rs. 750/- is considered as a minimum norm, for such fracture, where the victim has suffered from pain even though there was no permanent disability, on the head I of pain and suffering, we would not think of making an award of less than Rs. 4,000/- The income tax return Ex. 116 of Banaskantha construction company lows that even this prajapati was making a profit of Rs. 7000/- and he had agricultural incom. Therefore, even after making some allowance for exaggeration for the economic loss 'a further sum of Rs. 2000/- must be awarded and the award in this connection must be at least to the tune of Rs. 6000/-. There would be no contribution in the case of prajapati and the entire amount will have to be apportioned only between the two tort-feacors in the proportion of 3/4th to 1/4th.
20. In that view of the matter, this appeal must be allowed. In case of the deceased Maganlal Mistry, we would award him an amount of Rs. 90,000/- which will be so apportioned that 3/4th liability will be of respondent No. 2. O.N.G.C. and respondent No. 3 O.N.G.C. Driver and the 1/4th. liability of this amount will be borne by respondent No. 6 state and the driver respondent No. 7. So far as the truck insurer, opponent No. 4 is concerned, his liability to indemnify shall be to the extent of Rs. 20000/- with 6% interest and proportionate costs in respect of both the claimants. So far as the other appeal of the injured prajapati is concerned, the damages awarded shall be a sum of Rs. 6000/- for which the liability is apportioned between respondent-state and its driver and the O.N.G.C. And its driver as 1/4th and 3/4th respectively. The costs in both the forums to the extent of the claim allowed all throughout shall be paid to the claimants. The respondents shall bear their own costs all throughout. The awarded amount shall carry interest at 6% from the date of the application till the date of realisation. We further declare that the liability of the aforesaid respondents towards the claimant shall be joint and several and the apportionment is for forking out their respective liability inter se. The appeals are accordingly allowed.
21. While parting we must express our deep concern at the stand of total disconcert bordering almost on a dishonest defence, taken up by such a public authority, like the O.N.G.C. Especially in such a motor accident matter, where the driver immediately makes good the escape with the offending truck, but the authority would have all the true facts in its record which it withholds, resulting in gross failure of justice by denying just compensation due to the victim or dependents. In the M.A.C.T. Cases, the tribunals should display a more live and perceptive approach in such cases, by sparing no efforts to get all records produced from the public authority in the form of log books, musters etc. And by taking whatever clue that is available, from statutory police reports, which are mandatory under the Act so that they effectively discharge their statutory duties entrusted to them by the parliament of assessing a just compensation unpossessed by any technicalities, as per the legislature intention disclosed in this benevolent statute while taking away this matter from the ordinary civil courts, where the victim might get lost in the maze of technicalities of rigid rules of adversary procedure. This is the second matter from this area where but for Mr. Pathan's Vigilent investigation making it possible to identify the offending truck, the tort-feasor would have made good the escape by running away with the offending truck, rendering the Court helpless to do justice, even if we were to exercise powers of taking additional evidence.