STATE OF ASSAM v. BANTI BARNAH — 1978 DIGILAW 18 (GAU)

JUDGMENT : N. Ibotombi Singh, J. 1. These two appeals arise out of a motor accident in which one of the occupants of the jeep involved in the accident, Durlov Chandra Baruah, was fatally injured and his wife Mrs. Baruah, another occupant, was also injured. The accident took place on 25.12.67 at about 5 p.m. on the Shillong road at Reelbong near the 'In' gate of the Military Hospital. At the time of the accident, there were six occupants in the jeep including the driver, Mr. A.A. Hazarika; deceased was in the front seat on the extreme right. The jeep was left hand drive and bore No. ASA 6177. It belonged to the State Government of Assam and was in the charge of the deceased Durlov Chandra Baruah, who was Assistant Poultry Development Officer, Shillong. The jeep was proceeding on that day from Upper Shillong to Shillong Town. On the way near the in gate of the Military hospital at Shillong, it collided with a military ambulance truck bearing No. BA 272466, which belonged to the Central Government, resulting in the injuries to the two occupants above. Both the injured were taken immediately to the Military Hospital where injured Durlov Chandra Baruah was declared dead and his injured wife was also treated in the Civil Hospital, Shillong. She further received treatment from local doctors. The injured Mrs. Banti Baruah, preferred a claim for compensation u/s 110-A of the Motor Vehicles Act, 1939, before the Claims Tribunal constituted under the said Act, for a sum of Rs. 75,000/-, in her personal capacity, against the two drivers of the vehicles and the owners of the two vehicles. The claim petition was registered as M.A.C. No. 91 of 1968. She along with Mrs. Puspabala Sen, mother of the deceased preferred another claim, as legal representatives of the deceased Durlov Chandra Baruah, for a sum of Rs. 2,00,000/- against the same parties. It was registered as M.A.C. No. 92 of 1968. As the claims arise out of the same accident, they were consolidated, heard together and decided by a common order dated 11.4.71. In the first claim, the Tribunal gave an award for a sum of Rs. 25,000/- and in the second claim, it gave an award of Rs. 2,00,000/-, out of which Rs. 1,66,000/- was in favour of the widow of the deceased and Rs. 34,000/- in favour of the mother. In the first claim, the Tribunal gave an award for a sum of Rs. 25,000/- and in the second claim, it gave an award of Rs. 2,00,000/-, out of which Rs. 1,66,000/- was in favour of the widow of the deceased and Rs. 34,000/- in favour of the mother. In both the claims, the driver of the jeep and the State of Assam, as owner of the jeep, were held liable jointly and severally, on the finding that accident was due to the rash and negligent act of driving of the jeep. The driver of the military ambulance truck and Union of India were exonerated of the liability. In both the claims, it was alleged that the vehicles were driven rashly and negligently, as a consequence of which there was collision and that both the drivers and owners of two vehicles were liable. Union of India contested the claim and took the plea that the accident was due to the rash and negligent act of driving of the jeep. The State of Assam also denied the claim and pleaded that the accident was due to rash and negligent act of driving of the military ambulance truck. The Tribunal accepted the case of Union of India and rejected the plea of the State of Assam. Both the drivers did not file separate written statements in answer to the claims. They were however, examined as witnesses in the case; driver of the jeep Mr. Hazarika, as witness No. 1 on behalf of the State of Assam and the driver of the military ambulance truck, as a witness on behalf of Union of India. 2. As against the aforesaid awards, the State of Assam, has come up in appeal u/s 110-D of the Motor Vehicles Act, 1939, by two separate appeals. While the appeals were pending, the Autonomous State of Meghalaya was formed on 2.4.70 u/s 3 of the Assam Re-organisation (Meghalaya) Act, 1969. The Autonomous State of Meghalaya had undergone a change with effect from 21st January, 1972, under North Eastern Areas (Re-organisation) Act, 1971. On and from that day, there formed a new State known as the State of Meghalaya, comprising the territories which immediately before that day were comprised in the autonomous State of Meghalaya and so much of the territories comprised within the cantonment and municipality of Shillong as did not form part of that autonomous State. On and from that day, there formed a new State known as the State of Meghalaya, comprising the territories which immediately before that day were comprised in the autonomous State of Meghalaya and so much of the territories comprised within the cantonment and municipality of Shillong as did not form part of that autonomous State. In view of the change as above, the State of Meghalaya made an application for being impleaded as a Respondent in both the appeals. The application was allowed by an order of this Court passed on 11.6.73 and by a subsequent order made on 23.11.76, the State of Meghalaya was transposed as Appellant No. 2 in both the appeals. By this common judgment, we propose to dispose of two appeals in which common questions of law and facts are involved. 3. Learned Counsel for the State of Assam raises a preliminary point that there was no specific pleading in the claim petitions that the State of Assam, as owner of the jeep No. ASA 6177, is vicariously liable for the alleged act of negligence of the driver: it is urged that the State of Assam as such, cannot be saddled with such liability Learned Counsel for the claimants, on the other hand, submits that in the written statement, the State of Assam averred that Mr. A.A. Hazarika, opposite party No. 3, drove the jeep from Upper Shillong to Shillong town, but had not denied that he was driver or agent of the Government of Assam or that the jeep was not driven on Government's business at the time of the accident; as the State of Assam was impleaded as a party, it was implicit that the claim was made against the State of Assam on vicarious liability as owner of the offending vehicle. 4. In our view, a claim petition under Motor Vehicles Act cannot be equated to a plaint in civil suit and the petition is not to be construed also with formalistic rigour. Application for compensation u/s 110-A of the Motor Vehicles Act, 1939, is made in the form prescribed by Government under Rules. In the application it has, however, to give all particulars which are necessary for establishing the claim. Application for compensation u/s 110-A of the Motor Vehicles Act, 1939, is made in the form prescribed by Government under Rules. In the application it has, however, to give all particulars which are necessary for establishing the claim. In the prescribed form, particulars are to be given under column 22 but there is no column for making the part of the allegation that the State of Assam, as owner of the vehicle involved in the accident, is vicariously liable. Column 22 of the form simply relates to the other information that may be necessary or helpful in the dispute for the claim It was alleged in the petitions that both the vehicles were rashly and negligently driven and as such the drivers of both the vehicles and the two owners of the vehicles are liable for compensation. The particulars as given in column No. 22 in our opinion, are sufficient to give notice to the owners of the vehicles that they have been impleaded as parties, being liable vicariously for rash and negligent acts of driving the vehicles by their servants. The form cannot be said to be exhausted; it is intended that all relevant facts are to be ascertained by the Claims Tribunal which has been entrusted with more serious duty to find out who are the parties liable for compensation by recording evidence to be produced by the parties. By considering the entire evidence, in view of the specific duty assigned to it under the Act, the Tribunal has to decide the crucial questions as to which of the two drivers was at fault or whether both of them were at fault, or whether the owners of the vehicles or any of them were vicariously liable. The State of Assam knew the case against it; it took the specific stand that it was not liable. It suggests that the State has denied that the driver of the jeep was its servant or agent, or that he was acting in the course of his employment, as to make the State liable vicariously. We, therefore, reject the contention of the learned Counsel for the State and proceed to consider other questions raised in the appeals. 5. It suggests that the State has denied that the driver of the jeep was its servant or agent, or that he was acting in the course of his employment, as to make the State liable vicariously. We, therefore, reject the contention of the learned Counsel for the State and proceed to consider other questions raised in the appeals. 5. The first question which arises for our consideration is which of the two drivers, the jeep or the military ambulance truck, was at fault for the accident, or whether both of them were at fault for the accident. 6. Learned Counsel for the State of Assam submits that the accident was due to the rash and negligent act of driving of the military ambulance truck and submits that the finding of the Tribunal is erroneous. Learned Counsel for Union of India contends that the evidence on record supports the finding arrived at by the Tribunal--that accident was due to the rash and negligent act of the driver of the jeep and that the driver of the military vehicle and Union of India have been rightly exonerated of the liability. In this case, there is occular account of the accident. The collision took place near the In gate of the Military Hospital lying on the right side of the road. Before reaching the In gate of the Military Hospital; three vehicles were proceeding in the same direction. The military vehicle B.A. 272466 was ahead of all; next to it was a civilian taxi and behind it was the jeep ASA 6177. According to the evidence of the driver of the jeep, a public taxi over-took the military truck, on getting signal to pass from the military truck. It was at a distance of about 500 or 600 yards before reaching the In gate of the military hospital; at that time, the jeep was about 100 or 180 nals away from the military vehicle; thereafter, he blew horn in order to pass the military vehicle. His further evidence is that the driver of the military truck gave him signal to pass. He crossed the truck, but as soon as the jeep crossed, the truck dashed against the jeep on the spare tyre of the left rear side of the jeep, as a result of which the jeep capsized and fell on the deceased. Mr. Birendra Kr. He crossed the truck, but as soon as the jeep crossed, the truck dashed against the jeep on the spare tyre of the left rear side of the jeep, as a result of which the jeep capsized and fell on the deceased. Mr. Birendra Kr. Das, one of the occupants, who was examined as D.W. 2 on behalf of the State of Assam, made an endeavour to support the version of the driver of the jeep. The evidence of military driver who was examined as a witness on behalf of Union of India is that when he reached near about the In gate of the military hospital, a taxi from behind blew horn to give signal to pass. At that time, his vehicle was at a distance of about 70 yards from the In gate of the Military Hospital and on his giving signal, the taxi overtook his vehicle and thereafter, after coming to a little distance when he reached the place which is about 40 yards away from the In gate of the hospital, he turned his vehicle to the right by giving signal with hand and blowing horn. A civilian jeep came from behind and hit his vehicle on the right front mudguard. Then again, it hit on the right wheel of his vehicle when he attempted to take a turn towards left. He further stated that when he took a turn to the further left, then again the jeep hit his vehicle on the front side bumper and proceeded ahead and after proceeding about 20 yards, the jeep driver applied brake; when he applied brake, the jeep turned aside and capsized towards the right side of the road but near the drain. 7. We do not feel inclined to interfere with the finding of the Tribunal that the accident was due to rash and negligent act of driving the jeep. It is in evidence from the statement of the claimant, P.W. 5, Mrs. Banti Baruah, that the Assistant Engineer and some others of the poultry farm were also going ahead of them in a taxi on that day and that the jeep followed it. It also transpires from her evidence that the driver drove the jeep at a high speed so as to go ahead of the taxi. Banti Baruah, that the Assistant Engineer and some others of the poultry farm were also going ahead of them in a taxi on that day and that the jeep followed it. It also transpires from her evidence that the driver drove the jeep at a high speed so as to go ahead of the taxi. She further deposed that the driver of the jeep did not slow down when cautioned, telling her that he knew good driving and that he had driven vehicles on roads worse than that and he asked her not to be afraid. According to her testimony, it was the jeep which dashed against the ambulance truck. She further deposed that the ambulance took a turn to go to the Military Hospital and then the jeep dashed against it. In cross examination, she also deposed that till before dashing against the military truck by the jeep, the driver was driving the jeep at the same speed. The driver of jeep in his evidence also admitted that he increased the speed to overtake the military truck, when the driver of the truck gave him signal to pass. D.W. 2, Mr. Hirendra Kr. Das, does not support the version of the jeep driver in this respect stating that the speed of the jeep was not increased at the time of overtaking the military truck. It is apparent that the driver of the jeep drove the jeep at the high speed till before the accident. 8. It is true, the mere fact that a motor vehicle is driven at a high speed is by itself not conclusive proof of any negligence. The speed at which the motor vehicle may be driven is the speed which is reasonable, having regard to the time and other factors, such as, whether it passed through a crowded road or not. Mrs. Banti Baruah could not say how many miles per hour the jeep was driven at the time of accident, but she was definite that till before the accident, the driver drove the jeep at a high speed. Mrs. Banti Baruah could not say how many miles per hour the jeep was driven at the time of accident, but she was definite that till before the accident, the driver drove the jeep at a high speed. The circumstances in this case proves that the accident took place, when the driver of the jeep attempted to overtake the military vehicle going ahead of it driving at a high speed without taking sufficient care and caution in order to as certain that it would be safe for him to overtake the vehicle moving ahead of him. It seems that he neglected his duty to give a proper signal to the driver of the vehicle going ahead in order to show that he would be overtaking the vehicle. As the necessary precautions were not observed, it has to be considered that such driving is rash and negligent. The precautions to be observed in such cases are laid in Regulation 4 in the Xth Schedule to the Motor Vehicles Act, 1939. Regulation 4 reads as follows: 4. The driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself-- (a) if his or passing is likely to cause inconvenience or danger to other traffic proceeding in any direction. 9. The evidence of P.W. 5. Mrs Banti Baruah and the military driver, D.W. 3, Shib Kumar Ram, makes it clear that the driver of the jeep did not at all exercise any caution while attempting to overtake the truck. Before collision, according to the evidence of Mrs. Banti Baruah, as already stated, the driver of the jeep drove it at a speed as to cross the taxi. But the taxi went ahead crossing the ambulance. The part of her evidence that the ambulance took a turn to go to the Military Hospital when the jeep dashed against the ambulance has not been shaken. She corroborates the evidence of the military driver in this regard. We do not find any reason to disbelieve her. The version of the military driver is also consistent with the circumstances of the case. She corroborates the evidence of the military driver in this regard. We do not find any reason to disbelieve her. The version of the military driver is also consistent with the circumstances of the case. The accident took place on the right side of the road near the in gate of the hospital, suggesting thereby that the military driver had already started turning its vehicle towards right to enter the In gate of the Hospital and that the jeep came from behind and hit the truck on the right side of the front mudguard. It is highly improbable, as deposed by the driver of the jeep and D.W. 2 Biren Chandra Das, that the military driver would turn his vehicle towards the right side of the road to enter the in gate of the military hospital, without allowing the jeep to pass after he had given the jeep signal to pass. According to the evidence of the driver of the jeep, he increased the speed so to overtake the military vehicle, while the truck slowed down its speed after giving signal. In these circumstances, it is difficult to believe the version of the jeep driver that it was the military truck which dashed against the jeep. On the evidence on record, we are also satisfied that the driver of the jeep did not keep a sufficient lookout or that if he did keep a look out, possibly he was going too fast for a look out to be kept so as to avoid collision. There is another circumstance which reveals that it was the jeep which dashed against the military truck. It appears that the driver of the jeep did not slow down when approaching the road junction between the road which leads to the Hospital and the main road on which the vehicles were proceeding. Regulation 6th of the Xth Schedule to the Motor Vehicles Act, 1939, provides that the driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner. The jeep driver deposed that the jeep remained at the place, where the accident took place. Exts. 4 and 4(1) are the sketch map and index of the place of the accident. Mr. Ram Kanta Talukdar P.W. 4, Sub-Inspector of Police, who immediately arrived at the place of accident drew the sketch map. The jeep driver deposed that the jeep remained at the place, where the accident took place. Exts. 4 and 4(1) are the sketch map and index of the place of the accident. Mr. Ram Kanta Talukdar P.W. 4, Sub-Inspector of Police, who immediately arrived at the place of accident drew the sketch map. As shown by the sketch map, the accident took place near the in gate of the military hospital on the extreme right side of the road. The pitch portion of the road is 28 ft. wide and the non-pitch portion is 4 ft. wide on the northern side and 8 ft. wide on the southern side. There are skid marks of the jeep on the pitch road on the right side of the military truck. The skid marks would suggest that the jeep was driven at the time of accident at a high speed. Existence of the skid marks fits in with the statement of the military driver that the driver of the jeep after hitting the front side bumper of the military vehicle proceeded ahead and that after proceeding about 20 yards, the jeep driver applied brake and when he applied brake, the jeep turned aside and capsized towards the right side of the road but near the drain. There would have been some damage on the left rear side of the jeep had the military truck dashed against the jeep in the manner as deposed to by the driver of the jeep. On the contrary, as shown by the report, Ex. 5, damage was also caused to its front portion, lending support to the version of the military driver that the jeep dashed against the vehicle by the front side of the mud guard, when the military truck made a turn towards the right side of the road. It is also a case where the principle of res ipsa loquitur applies. The accident here speaks for itself or tells its own story. It is a common knowledge that in the last part of December, 1967, in the hilly track of Shillong where accident took place, it is almost dark. He had not observed the traffic regulations in approaching a road junction. There are skid marks on the right side of the road near the in gate of the military hospital, without injury mark on left rear side of the jeep. He had not observed the traffic regulations in approaching a road junction. There are skid marks on the right side of the road near the in gate of the military hospital, without injury mark on left rear side of the jeep. The circumstances above re-in force our conclusion that the accident was due to the rash and negligent act of the jeep driver. 10. Learned Counsel for the State next urges that the deceased Durlov Chandra Baruah is guilty of contributory negligence. He allowed Mr. A.A. Hazarika to drive the jeep, although he has not such authority. He further submits that 3 persons, deceased Durlov Chandra Baruah, his wife and Mrs. Hazarika, were in the front seat of the jeep excluding the driver Mr. A.A. Hazarika, thereby exposing themselves to the risk of an accident. The first part of the argument will be dealt with later on. As regards the second part of the argument, we do not find any material to hold that the deceased Durlov Chandra Baruah and his wife Mrs. Banti Baruah were guilty of contributory negligence, as contended. In the written statement or at any stage of the trial before the Tribunal, or even in the memo of appeal before this Court, no such ground was taken; no evidence was led by the parties in this respect before the Trial court. Only in the course of argument, learned Counsel for the State faintly raises this point. The accident, as already discussed, was solely due to the negligent act of driving the jeep, while attempting to overtake the military ambulance truck, without proper care and caution. We reject the contention of the learned Counsel for the State. 11. The next question which falls for our determination is whether the State of Assam is liable vicariously for the rash and negligent act of driving by Mr. Hazarika. Learned Counsel for the State submits that the deceased went to Shillong in a jeep driven by an unauthorised person for purposes of his own and not on the business of the Government. It is further urged that Mr. Hazarika. Learned Counsel for the State submits that the deceased went to Shillong in a jeep driven by an unauthorised person for purposes of his own and not on the business of the Government. It is further urged that Mr. A.A. Hazarika could not be said to be a servant or agent of the Government in driving the jeep and unless it is established that he was either agent or servant of the owner of the jeep, the State of Assam cannot be saddled with vicarious liability for his alleged negligent act of driving. Reliance is placed on the decision of Sitaram Motilal Kalal v. Santanu Prasad 1966 A.C.J. 89, in support of his contention. 12. In regard to this submission, we shall first consider the liability of the State of Assam in the claim of the legal representatives of the deceased, as in our opinion, it has a material bearing on the claim of Mrs. Banti Baruah in her personal capacity. Admittedly the jeep belonged to the State of Assam. It is in evidence from the testimony of A.A. Hazarika that the jeep was left to the custody and control of the deceased Durlov Chandra Baruah, who was then the Assistant Poultry Officer, Shillong. Deceased Durlov Chandra Baruah was in charge of poultry and piggery section of Upper Shillong farm; the accident took place on a Christmas Day and that day was a Government holiday. Mr. A.A. Hazarika, was working as Manager of Upper Shillong farm (animal husbandary at Shillong) and he was then the Manager of the Live Stock Section. According to the evidence of Hazarika, on the day of the accident, feed for fowls was not available in the section of the deceased Durlov Chandra Baruah; for that day, he gave Dualov Chandra Baruah some feed from his section; so it was necessary to send a truck to Khanapara to bring feed; there was a truck in his Section, but the driver was on leave. Durlov Chandra Baruah, in order to drive the truck to Khanapara on the following day, wanted to search out a driver in Shillong. Deceased Durlov Chandra Baruah was as such to go to Shillong for that purpose by the jeep kept in his charge. As he himself did not know how to drive, he requested A.A. Hazarika to drive the jeep. Deceased Durlov Chandra Baruah was as such to go to Shillong for that purpose by the jeep kept in his charge. As he himself did not know how to drive, he requested A.A. Hazarika to drive the jeep. A.A. Hazarika drove the jeep on that day for the above purpose. Mr. A.A. Hazarika and the deceased were officers of the same rank, although he was senior to the deceased. He got the driving license in 1962. Durlov Chandra Baruah was in the jeep driven by A.A. Hazarika at his request, in discharge of his duty to search out a driver in Shillong. We are convinced from the testimony of A.A. Hazarika that the purpose of the journey to Shillong town was to search out a driver to drive the truck on the next following day to fetch feed for fowls of Government farm from Khanapara. We find no reason as to why we should not accept this part of evidence of Mr. A.A. Hazarika. 13. Salmond on the Law of Torts, fifteenth Edition, at page 620, summed up the law as to vicarious liability as: A master is not responsible for a wrongful act by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (i) a wrongful act authorised by the master or (2) a wrongful and unauthorised mode of doing some act authorised by the master. 14. The principle on which the owner of a vehicle is held vicariously liable for the negligent driving of the vehicle by another person is the principle qui facit per alium, facit per se. If the vehicle is driven by another person either as a servant in the course of the employment or as an agent in the course of the agency, the owner is responsible for the negligence in driving. The making of the journey is a delegated duty or task undertaken by the servant or agent in pursuance of the order or instruction from the owner and for the purposes of the owner. 15. Learned Advocate General for the State of Meghalaya, while supporting the contentions of learned Counsel for the State of Assam on this question, places reliance on the case of Hewitt v. Bovin and Anr. 15. Learned Advocate General for the State of Meghalaya, while supporting the contentions of learned Counsel for the State of Assam on this question, places reliance on the case of Hewitt v. Bovin and Anr. (1940) 1 K.B. 191, In that case, a son obtained from his mother, who had authority to grant it, permission to drive his father's motor car. The son wanted the car for his own purpose in order to drive two girl friends home from London to Wisbech. Neither the father nor the mother knew the girls and it was no concern of either of them that the girl should be driven to Wisbech. On the way back through the negligent driving of the son, the car was up set and a friend who had accompanied the party to Wisbech, was killed. An action was brought by the Administrator of the deceased against the father owner of the car. Lord Mackinnon L.J. in his judgment observed at page 191: If A suffers damage by the wrongful act of B and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C. If he says that he was C's agent he must further show that C authorised the act. If he can establish that B was the servant of C the question of authority need not arise. A master is jointly and severally liable with his servant for any tort committed by the servant in the course of his employment. 16. It was found that the son was not employed to drive the car as his father's servant and when the accident happened he was not doing any work of his father. He was driving his own friend, for his own purpose and the father had absolutely no interest or concern in what he was doing. On the facts found, the court of appeal held the father not liable for his son's tortious act. In the case before us, on the evidence on record, we find that Mr. A.A. Hazarika drove the jeep on Government's business at the request of the deceased Durlov Chandra Baruah who had the implied authority on behalf of the Government to engage temporarily for government business, which we shall presently discuss. 17. In the case before us, on the evidence on record, we find that Mr. A.A. Hazarika drove the jeep on Government's business at the request of the deceased Durlov Chandra Baruah who had the implied authority on behalf of the Government to engage temporarily for government business, which we shall presently discuss. 17. There can be no dispute that deceased Durlov Chandra Baruah should use the jeep for Government business in course of his employment as a Veterinary Development Officer-in-charge of the poultry and piggery Section in Shillong; he had control over the movement of the jeep which was left to his charge. Government led no evidence that a Government Officer has no authority to engage on behalf of the Government another competent person temporarily as a driver for Government's purpose. No such rule has also been produced before us. A man can also be engaged temporarily as a servant without remuneration. It is in evidence from the testimony of A.A. Hazarika that the driver was not available; and there was also the necessity for Durlov Chandra Baruah to go to Shillong to search out a driver for truck. In the absence of evidence to the contrary, we hold that deceased Durlov Chandra Baruah had implied authority on behalf of the Government to engage A.A. Hazarika temporarily to drive the jeep for the above Government business We cannot accept the contention of the Learned Counsel for the State that the statement of the driver of the jeep that he drove the jeep at the request of the deceased is inadmissible as hearsay evidence. What he has deposed to is about the factum of the authority to drive the jeep of which he has direct knowledge. It is not hit by rule of hearsay evidence. 17. In Sitaram Motilal on which reliance is placed on behalf of the State, the owner of a car entrusted it to 'A' for plying it as taxi. 'B' who used to clean the taxi was employed by the owner or on his behalf by 'A'. 'A' trained B for obtaining a driving license to drive the taxi. While taking the driving test, 'B' caused bodily injury to the claimant. 'A' was not present in the car at the time of the accident. 'B' who used to clean the taxi was employed by the owner or on his behalf by 'A'. 'A' trained B for obtaining a driving license to drive the taxi. While taking the driving test, 'B' caused bodily injury to the claimant. 'A' was not present in the car at the time of the accident. On the question, whether the owner was liable, it was held that there was no proof that 'A' was authorised by the owner to coach 'B' a cleaner so that 'B' might become a driver and drive the car. Holding that it had not been proved that the act was impliedly authorised by the owner or to come within any of the extension of the doctrine of scope of employment laid down in Ormrod v. Crosville Motor Services Ltd. (1953) 2 All E.R. 753, the Supreme Court held that the master was not liable. The Supreme Court laid down the law as to the master's vicarious liability and observed at page 93, as follows: The Law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident is not acting within the course of his employment but is doing some thing for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The defacto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master, prima facie the owner would not be liable in such circumstances. 18. The defacto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master, prima facie the owner would not be liable in such circumstances. 18. The Supreme Court accepted the extension of the doctrine of scope of employment laid down in Ormrod where Lord Denning stated; "It has been supposed that the owner of the vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. That is not correct. The owner is also liable if the driver is, with owner's consent, driving the car on the owner's business or for the owner's purposes." 19. On the principles of law discussed above and applying the tests laid down in Sitaram Motilal we have no hesitation in holding that the State of Assam is liable for rash and negligent act of driving the jeep. Durlov Chandra Baruah had the implied authority to engage Mr. A.A. Hazarika temporarily to drive the jeep for Government purposes. Mr. A.A. Hazarika was as such driving the jeep in course of his employment for Government's business at the time of the accident. Deceased Durlov Chandra Baruah was also in the jeep in that journey for the same Government's purpose. There is a presumption that a vehicle is driven on a master's business and by his authorised agent or servant, but such a presumption can be rebutted. Just as an inference may be drawn from proof that the vehicle was owned by another that the driver was driving as servant or agent or owner, so may a presumption arise where it is proved that the driver at the time of accident was negligent was doing something which was in the interest of the owner or for his benefit, that the driver was then a servant or agent of the owner. But in the case before us, the presumption has not been negatived. The decision in Sitaram Motilal in that respect is of no help to the State, but supports the case of claimants. But in the case before us, the presumption has not been negatived. The decision in Sitaram Motilal in that respect is of no help to the State, but supports the case of claimants. In view of our findings above, we hold that the claimants, as legal representatives of deceased Durlov Chandra Baruah, are entitled to compensation and that the State of Assam is liable vicariously for the rash and negligent act of driving the jeep by A.A. Hazarika. 20. We shall next consider the question whether Mrs. Banti Baruah is entitled to compensation in the claim in her personal capacity. 21. Learned Counsel for the State submits that she is a gratuitous passenger in the jeep and she as such, was a trespasser, so far as the Government as owner of the jeep is concerned on the principle of Volenti non fit injuria, it is contended that she is not entitled to any compensation. Reliance is also placed on the case in Sitaram Motilal in support of his contention. Learned Counsel for the claimants, on the other hand, strongly relies on the case in Pushpabai Parshottam Udeshi and Ors. v. Ranjit Ginning and Pressing Co. Ltd. and Anr. 1977 A.C.J. 343. He submits that Durlov Chandra Baruah had implied authority to give a lift to his own wife Banti Baruah in that jeep in which he was travelling in discharge of his official duty. It is urged that Mrs. Banti Baruah is as such a licensee. On the principle as laid down in Parshottam's case above, as he himself and the driver were acting in course of employment in giving lift to Mrs. Banti Baruah, the State of Assam is liable for the rash and negligent act of driving the jeep. We shall consider which of the two rival contentions is correct. 22. In Pushabai's case Parshottam met with his death in a car accident in which he was travelling driven by the Manager of the Company in a rash and negligent manner. The Manager had permitted Parshottam to have a ride in the car; the car belonged to the company. The car was proceeding for the purpose of the company and on the way the accident took place. The Manager had permitted Parshottam to have a ride in the car; the car belonged to the company. The car was proceeding for the purpose of the company and on the way the accident took place. In the claim preferred by the legal representatives of the deceased Parshottam, the Company who were the owners of the car pleaded that the deceased was travelling in the said vehicle on his own responsibility and for his own purpose and absolutely at great risk and not on behalf of or at the instance of the company; the deceased as passenger was neither in course of the employment, nor under any authority whatsoever. There was no evidence that the owners of the vehicle were aware that the deceased was being taken in the car as a passenger by the Manager and so far as owner's were concerned, the deceased was no better than a trespasser. It was, as such, pleaded that the company was not liable. The Supreme Court rejected the plea of the company, the owner of the car, by accepting the tests laid down in the case of Young v. Edward Box (1951) 1 T.L.R. 789, on master's liability for negligence of his servant in giving lift to any person as a passenger in motor car, though the servant has been forbidden or is unauthorised by the master. In Young the Plaintiff, a fellow workman, was given a lift on one of the Defendant's lorry with the consent of his foreman and of the driver of the lorry. On a Sunday evening, the Plaintiff, in the course of that journey was injured by the negligence of the driver of the lorry and the Plaintiff brought an action against the Defendants claiming damages for his injuries. The defence was that the Plaintiff when on the lorry was a trespasser. The traffic manager of the Defendants pleaded that he had never given instruction to the foreman that he would arrange for lift being given to the Plaintiff's riding on the lorry. The Defendants were held liable vicariously. The defence was that the Plaintiff when on the lorry was a trespasser. The traffic manager of the Defendants pleaded that he had never given instruction to the foreman that he would arrange for lift being given to the Plaintiff's riding on the lorry. The Defendants were held liable vicariously. The Supreme Court held that in Young while two learned Judges held that the right to give to the Plaintiff leave to ride on the lorry was within the ostensible authority of the foreman and that the Plaintiff was entitled to rely on that authority and in that respect was a licensee, Lord Denning held that although the Plaintiff, when on the lorry, was a trespasser, so far as the Defendants were concerned, the driver was acting in the course of his employment in giving the Plaintiff a lift and that was sufficient to make the Defendants liable and that Lord Denning did not base his judgment on the consent of the foreman. The Supreme Court referred to the observations of Lord Denning-- The next question is how far the employees are liable for their servant's conduct. In order to make the employers liable to the passenger it is not sufficient that they should be liable for their servant's negligence in driving. They must also be responsible for his conduct in giving the man a lift. If the servant has been forbidden, or is unauthorised, to give anyone a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned; but that is not of itself an answer to the claim. In my opinion when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in a position, not only to drive it, but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it, but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment. 23. 23. Taking into account the high position of the driver who was a Manager of the Company, it was considered reasonable to presume, in the absence of the evidence to the contrary, that the Manager had authority to carry Parshottam and was acting in the course of his employment. Applying the tests laid down in Young (supra), the Supreme Court concluded that the right to give leave to Parshottam to ride in the car was within the ostensible authority of the Manager of the Company who was driving the car and the Manager was acting in the course of his employment in giving leave to Parshottam. Under both the tests, the Company in that case was held liable. 24. In the case before us, we have already held that the deceased Durlov Chandra Baruah was proceeding in a jeep in discharge of his duty on a Government business driven by A.A. Hazarika at the request of Durlov Chandra Baruah. His wife, Mrs. Banti Baruah, accompanied her husband in that journey. Her husband and the driver, Mr. A.A. Hazarika both of whom were responsible officers, had given her leave to ride on it. The State of Assam has not led any evidence to show that a Government servant cannot take his wife in a Government vehicle when he undertakes the journey on Government business. Nor has the learned Counsel for the State placed before us any rule prohibiting Government servant from giving a lift to his wife in such a Government vehicle. Mrs. Banti Baruah, on the facts and circumstances above, was in that respect a licencee. It was within the ostensible authority of Durlov Chandra Baruah as Assistant Poultry Development Officer, of the Government of Assam to give a lift to his wife to ride in the jeep driven by A.A. Hazarika in a course of his employment. Both the officers were acting in course of their employment in giving Mrs. Banti Baruah a lift in that journey. Applying the two tests laid down in Young v. Edward Box and Co. Limited (supra), which were accepted by the Supreme Court in Pushpabai Parshottam and on the facts and circumstances of the present case, we conclude that the State of Assam is vicariously liable for the injuries to Mrs. Banti Baruah in that accident. 25. Learned Counsel for the State relies also on the case of Twine v. Bean's Express. Limited (supra), which were accepted by the Supreme Court in Pushpabai Parshottam and on the facts and circumstances of the present case, we conclude that the State of Assam is vicariously liable for the injuries to Mrs. Banti Baruah in that accident. 25. Learned Counsel for the State relies also on the case of Twine v. Bean's Express. (1945) 62 T.L.R. 458, In that case, there was an express prohibition of giving lift to any person as passenger by the driver. There were two notices on the van. By one notice, no unauthorised person was allowed on the vehicle and by another notice, the driver was given instruction not to allow unauthorised travellers in the van. Against such express prohibition, a person who was not authorised to ride in the van was given a lift in the van without the consent of the owners. Due to the negligence of the driver, the accident took place and the unauthorised passenger was killed. The contention that the accident arose while the driver was engaged in a duly authorised journey was negatived holding that the Defendant owed no duty to the passenger to take care, that the driver in giving the lift to the passenger was clearly not within the scope of his employment. The employers were consequently held not liable on the facts of that case. 26. In the case before us, as already discussed, there is no proof of such prohibition. It may be noticed that in a recent case, Rose v. Plenty 1976 A.C.J. 378, the Court of Appeal by a majority rejected the theory of trespass and rested the employer's liability on the scope of employment. The test laid down in Young v. Edward Box and Company Limited (supra) was affirmed. Lord Denning M.R. after referring to the cases Twine v. Bean's Express Limited (supra) and Conway v. George Wimpy and Co. Limited (1951) 1 All E.R. 353, observed: But these cases are to be explained on other grounds : and the statements about a trespasser are no longer correct. Those statements were made at a time when it was commonly supposed that occupiers of premises were under no duty to use care in regard to a trespasser. Limited (1951) 1 All E.R. 353, observed: But these cases are to be explained on other grounds : and the statements about a trespasser are no longer correct. Those statements were made at a time when it was commonly supposed that occupiers of premises were under no duty to use care in regard to a trespasser. But that stern rule has not now been abandoned, especially when the trespasser is a child: see British Railway Board v. Harrington Southern Portland Cement Ltd. v. Cooper and Harris v. Birkenhead Corporation. So far as vehicles are concerned, I venture to go back to my own judgment in Young v. Edward Box and Co. Ltd., when I said: In every case where it is sought to make the master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant's liability. 27. On the facts above, the Co-operative Retail Services Ltd. as employer were held vicariously liable, although the employer expressly prohibited the milkman from carrying children on milk float. The accident took place, where the milk man in taking the boy on the milk float was acting in the course of employment. The decision, in our view, supports the contention of the learned Counsel for the claimants that the State of Assam is vicariously liable. 28. The next question is about the quantum of assessment in both the claims. We shall first consider the claim of Mrs. Banti Baruah, in her personal capacity, in M.A.C. No. 91 of 1968. She received one grevious injury; the upper incissor tooth got loosened and one was half broken. Except this grevious injury, the other four injuries are simple, as described by Dr. Mrs. I.F. Eynsah, P.W. 6, who examined her. There is no medical evidence that she was physically handicapped by the injuries and that the injuries would take away her comforts of normal life, nor is there any evidence to show that she might not find any avenue of life in future due to the injuries she sustained, rendering her physically handicapped. But the Tribunal gave an award of Rs. 22,000/- as general damages. The claimant was a graduate, aged about 25 years, at the time of the accident. But the Tribunal gave an award of Rs. 22,000/- as general damages. The claimant was a graduate, aged about 25 years, at the time of the accident. Considering, the nature of the injuries, the shock she got and the circumstances appearing in the case, we consider Rs. 5,000/- as general damages to be reasonable. As to the special damages, there is no evidence to prove the actual expenditure incurred for her medical treatment. But the fact remains that she received five injuries including one which is grevious and that she was given treatment in the Civil Hospital, Shillong and thereafter she got further treatment at Jorhat in her father's house. In the absence of any evidence to prove the actual expenditure, the amount of Rs. 1,000/- as special damage in our opinion, appears to be reasonable. The total amount of compensation comes to Rs. 6,000/- and we modify the award accordingly. 29. We shall next consider the quantum of assessment in the other claim M.A.C. No. 92 of 1968, made by the widow and his mother, as legal representatives of the deceased. As regards the principle, it has been laid down by the Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. and Anr. 1971 A.C.J. 206 , that u/s 110-B of Motor Vehicles Act, 1939, the Tribunal is required to such compensation which appears to it to be just. The power given to the Tribunal in the matter of fixing compensation under that provision is wide. Even if it is assumed that the compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855, the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. The determination of the question of the compensation depends on several imponderable and so one cannot insist or expect material accuracy in such assessment. The general principle of assessment of compensation, as has been observed by the Supreme Court in Gobald Motor Service Ltd. and Another Vs. The determination of the question of the compensation depends on several imponderable and so one cannot insist or expect material accuracy in such assessment. The general principle of assessment of compensation, as has been observed by the Supreme Court in Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source come to them by reason of the death, that is, the balance of loss and gain to dependent by the death must be ascertained. 30. In this case, the Tribunal gave the award on the following heads: 1. Average pay of Rs. 650/- p.m. multiplied by 25 years till the age of superannuation of 35 years, the deceased being 30 year of age at the time of his death. Rs. 1,95,000.00 2. Taking Rs. 800.00 per month as the average pay at the time of retirement and taking 65 years age as the span of life, the pension amount for 10 years. 42,000.00 3. Gratuity-cum-retirement for 13 months at the rate of Rs. 800.00 per month. 10,400.00 Total Rs. 2,47,400.00 A sum of Rs. 50,000.00 was added to it, as general damage, total Rs. 2,97,400.00 Rs. 94,500.00 was deducted from this total figure @ Rs. 225.00 per month for his personal expenses for the rest of his life i.e. 35 years, had he been alive. The Tribunal awarded Rs. 2,00,000 which is the amount claimed. Out of this amount, Rs. 34,000.00 was deducted, for the mother of the deceased and the remaining amount of Rs. 1,66,600.00 was awarded in favour of the widow, Mrs. Banti Baruah. 31. Learned Counsel for the State submits that the Tribunal arbitrarily assessed the amount of compensation in this claim. Learned Counsel for the claimants submits that the amount is not excessive. It is urged that the Tribunal has not taken into account the salary which the deceased would have earned while reaching the maximum of his grade long before his retirement. It is further urged that the scale of pay of the post which the deceased held was revised in 1975 to the scale of Rs. 500-35-745 EB-35-1025 EB-40-1225/- published in the Gazatte of Assam (Extraordinary) 15th July, 1975, with retrospective affect from 1st January, 1973. It is further urged that the scale of pay of the post which the deceased held was revised in 1975 to the scale of Rs. 500-35-745 EB-35-1025 EB-40-1225/- published in the Gazatte of Assam (Extraordinary) 15th July, 1975, with retrospective affect from 1st January, 1973. The revised pay if taken into account would have further enhanced the amount. We find some force in the contention of the learned Counsel for the claimants. In calculation in the amount of the part of salary and pension etc., we have adopted the principle of a similar case before the Supreme Court in Manjuhri Raha v. B.L. Gupta. 1977 A.C.J. 134, The date of birth of Durlov Chandra Baruah was 6.4.36; and on the date of his accident on 25.12.67, his age was 31 years 8 months and 21 days; he was nearing 32 years. He was appointed on 1.2.56 as Extension Officer in Animal Husbandary Department (non-Gazetted) post and was promoted to Gazetted post as Assistant Poultry Development officer on 8.5.67 in the scale of Rs. 350-30-500-EB-30-680-EB. 35-925/- p.m. At the time of his death, he was drawing a basic salary of Rs. 410/- p.m. with allowance, Rs. 538-50 paise. He was due to retire on 1.4.91 at his age of 55 years. As the old scale was revised from Rs. 500 to Rs. 1,325/- p.m. before his retirement, he would have got basic salary of Rs. 955/- p.m. on 1.4.83 at his age of 47 years, that is full 8 years before superannuation in the new scale. In the course of hearing before us, learned Counsel for the claimants filed a statement of accounts of salary which the deceased Durlov Chandra Baruah would have got till his retirement under the new scale and old scale with the copy to the counsel for the State. The State of Assam also filed a statement of account showing the amounts, which might have been given, if at all, by the Tribunal to the claimants, with the copy to the counsel for the claimants. The two statements of accounts filed by the parties form a part of the record of these appeals. According to the statement of accounts, the total salary in the old scale from 1.1.68 to 1.4.74 is Rs. 37,910/- and in the new scale from 1.4.74 to 1.4.91 is Rs. 1,88,340/-. The total emoluments comes to Rs. 2,26,250/-. The two statements of accounts filed by the parties form a part of the record of these appeals. According to the statement of accounts, the total salary in the old scale from 1.1.68 to 1.4.74 is Rs. 37,910/- and in the new scale from 1.4.74 to 1.4.91 is Rs. 1,88,340/-. The total emoluments comes to Rs. 2,26,250/-. This amount includes the increments earned and the maximum grade drawn in the new scale. The amount is rounded up to Rs. 2,26,000/-. By deducting half of this amount as is taken to have been spent by the deceased to cover day-to-day domestic expenses, the payment of income tax and other charges, the actual income loss to family including the value of the assets and loss to the dependents would be Rs. 1,13,000/-. 32. The Tribunal assessed Rs. 42,000/-for 10 years at the rate of Rs. 800/- as monthly pension. Having regard to the new scale of pay and the length of service of the deceased, the monthly pension calculated according to the pension rule, would be round about Rs. 400/- p.m. and the deceased would not have been able to save any amount from this head on account of the expenses of the family and of himself. There is no other source of income. The deceased would also have got death-cum-retirement gratuity to the extent of about Rs. 14,365/-, which is rounded up to Rs. 14,000/- calculated on the basis of the presumptive average emoluments and presumptive last emoluments. Had deceased Durlov Baruah lived after superannuation, he might have got probably this amount. The total amount comes to Rs. 1,27,000.00 on the three heads above. 33. The Tribunal assessed Rs. 24,000/- at the rate Rs. 100/- p.m. for 20 years, as according to the evidence of Mrs. Banti Baruah, the deceased used to give his mother Rs. 100/- p.m. This amount, in our view, is reasonable and is to be deducted from Rs. 1,27,000/- and the balance of Rs. 1,08,000/- would be the share of the widow, Mrs. Banti Baruah. We also consider the amount of Rs. 10,000/- assessed by the Tribunal for the mother, by way of general damages, to be reasonable. The total amount for the mother comes to Rs. 34,000/-. 34. We next consider the question of deduction usually made in such cases on account of uncertainties of life, accelerated payment and getting a lump sum amount. We also consider the amount of Rs. 10,000/- assessed by the Tribunal for the mother, by way of general damages, to be reasonable. The total amount for the mother comes to Rs. 34,000/-. 34. We next consider the question of deduction usually made in such cases on account of uncertainties of life, accelerated payment and getting a lump sum amount. The Tribunal made no deduction at all. In Madhya Pradesh State Road Transport Corporation Bairagarh Bhopal v. Sudhakar Udeshi and Ors. 1977 A.C.J. 290, the Supreme Court held that in assessing the damages, certain other factors have to be taken into consideration, such as, uncertainties of life and the fact of accelerated payment and that the husband would be getting a lump sum payment. Allowance must be made and total figure scaled down accordingly. The deceased might also not be able to earn till the age of retirement for some reason or other like illness. This amount assessed has to be reduced taking into account these imponderable factors; some elements of conjucture is inevitable in assessing damages; Lord Pearce in Mallett v. McMonagle 1969 A.C.J. 312, calls it 'reasonable prophecy'. 35. In the case of the mother, on the principle above, we make the usual deduction of 20% on Rs. 34,000/-, 10% for uncertainties of life and 10% for lump sum payment. The total amount to be deducted is rounded up to Rs. 5,000/-. This amount is deducted from Rs. 34,000/- and the net amount comes to 28,000/-. We, accordingly, modify the award and assess Rs. 28,000/- for the mother. 36. Learned Counsel for the State submits that in the case of the widow of the deceased, further deduction of the pensionary benefit which she is entitled to, must be deducted from the computation of the damage of the amount to the claimant, on the principle laid down in Gobald Motor Service Ltd. (supra). According to the evidence P.W. 7, C.R. Dutta Chowdhury, Superintendent in the Office of the Accountant General Section, the widow might get approximately Rs. 123/- p.m. for the first 7 years and thereafter Rs. 61.50 paise per month till her death or re-marriage. It is in evidence from the testimony of P.W. 3, Dr. B.K. Gohain, Joint Director of Animal Husbandry and Veterinary, Gauhati, that Durlov Baruah was confirmed as a Veteri nary Assistant Surgeon in the scale of pay of Rs. 123/- p.m. for the first 7 years and thereafter Rs. 61.50 paise per month till her death or re-marriage. It is in evidence from the testimony of P.W. 3, Dr. B.K. Gohain, Joint Director of Animal Husbandry and Veterinary, Gauhati, that Durlov Baruah was confirmed as a Veteri nary Assistant Surgeon in the scale of pay of Rs. 300-800/- p.m. and the confirmation order was issued after his death. Mrs. Banti Baruah was aged about 25 years at the time of the accident. Taking the minimum span of life to be 65 years, the total amount on the family pension comes to Rs. 34,686 which is rounded as Rs. 34,000/-. Learned Counsel for the claimants urges, on the principle laid down by the House of Lords in Perry v. Clevear 1969 A.C.J. 363, that such a pensionary benefit is not deductable in assessing damages in the loss of earnings. But the majority judgment in that case was largely influenced by the public policy in the matter, as interpreted by parliament, requiring pension not to be taken into account under the Fatal Accidents Act, which was amended in 1959. Section 2(i) of the Fatal Accidents Act provides as follows: In assessing damages in respect of persons death in any action under the Fatal Accidents Act, 1846, or under the Carriage by Air Act, 1932, there shall not be taken into account any insurance money, benefit, pension or gratuity which has been or will or may be paid as a result of the death. 37. But in India, however, there is no such legislation. It is laid down by the Supreme Court in Gobald Motor Service Ltd. (supra) that any pecuniary advantage which from whatever source comes to the dependents by reason of the death should also be taken into account in the balance of loss and gain to a dependant. In that view of the matter, the pensionary benefit which Mrs. Banti Baruah got by reason of the death of her husband shall have to be taken into account in the balance of loss and gain. Mrs. Banti Baruah would have been entitled to pensionary benefit for only 7 years after the death of her husband, as she would be 50 years when her husband attains the age of 55 years. Banti Baruah got by reason of the death of her husband shall have to be taken into account in the balance of loss and gain. Mrs. Banti Baruah would have been entitled to pensionary benefit for only 7 years after the death of her husband, as she would be 50 years when her husband attains the age of 55 years. By the pre-matured death of her husband, she got the accelerated payment of the family pension by 33 years earlier and the amount for 33 years is about Rs. 24,000/- calculated @ Rs. 61.50 paise per month. Deduction of Rs. 4,900/- @ 20% on Rs. 24,000/- as such in the circumstances would be reasonable. We assess at Rs. 10,000/- the loss of consortium and shock to her and adding this amount to Rs. 1,08,000/-, the total amount comes to Rs. 1,18,000/-. out of Rs. 1,18,000/-, we deduct Rs. 4,800/- being 20% of the family pension of Rs. 24,000/- above. The amount comes to Rs. 1,13,200/-, which is rounded up to Rs. 1,13,000/-. Further deduction of Rs. 22,600/-, is made from Rs. 1,13,000/-, 10% for uncertainties of life and 10% for lump sum payment. The amount comes to Rs. 90,400/- which is rounded up to Rs. 90,000/-. We, accordingly, modify the award in the case of the widow and assess at Rs. 90,000/-. 38. The last question that remains to be considered is whether the liability of the State of Assam has devolved on the State of Meghalaya consequent upon the formation of the Autonomous State of Meghalaya within the State of Assam on 2.4.70 u/s 3 of the Assam Re-organisation (Meghalaya) Act, 1969 (which is hereinafter referred to as the Act, 1969) and thereafter on its becoming a full flaged State with effect from 21.1.72, under the North Eastern Area (Re-Organisation) Act, 1971 (hereinafter referred to the Act, 1971). 39. Learned Advocate General for the State of Meghalaya, submits that the liability of the State of Assam in both the claims does not devolve on the State of Meghalaya, on the apportionment of assests and liabilities between the two State under both the Acts. Learned Counsel appearing for the State of Assam controverts the correctness of the proposition above. 40. In order to decide the question posed before us, it will be necessary to state a few facts bearing on the question. Learned Counsel appearing for the State of Assam controverts the correctness of the proposition above. 40. In order to decide the question posed before us, it will be necessary to state a few facts bearing on the question. The accident took place near the in gate of the Military Hospital lying within the cantonment area of Shillong before the formation of the Autonomous State of Meghalaya on 2-4-70. Under sub-para (2) of paragraph 30 of the Sixth Schedule to the constitution, the cantonment area in which the accident took place was excluded from the Tribal areas, which were comprised within the Autonomous State of Meghalaya. On and from 21st day of January, 1972, the position stood changed. The cantonment area and municipality of Shillong, as did not form part of the Autonomous State of Meghalaya, became an integral part of the State of Meghalaya u/s 5 (b) of the Act, 1971. Both the petitions were filed for compensation under the Motor Vehicles Act, 1939, on 20-2-68 and awards in both the claims were given by the Tribunal on 11-5-71 by a common order. Meghalaya became an Autonomous State within the State of Assam during the pendency of the claim petitions before the Tribunal. 41. We now turn to the relevant provisions of the Act, 1969. Section 58 of the Act, 1969, provides for an apportionment of assets and liabilities between the State of Assam and the Autonomous State of Meghalaya. It provides that assets and liabilities of the State of Assam immediately before the appointed day, i.e. on 2-4-70, shall be apportioned between that State and the Autonomous State of Meghalaya, in accordance with the provisions contained in the Third Schedule to the Act, 1969. As the cantonment area within which the accident took place did not form part of the Autonomous State of Meghalaya, Section 58 of the Act, 1969, does not come into play; and as such, the question of apportionment of the liability in respect of the present claims does not arise, as between the State of Assam and the Autonomous State of Meghalaya. 42. We next refer to the provisions of the Act, 1971, whether such a liability has devolved on the State of Meghalaya formed under the Act, 1971, Section 51 of the Act, 1971, is relevant for the purpose. 42. We next refer to the provisions of the Act, 1971, whether such a liability has devolved on the State of Meghalaya formed under the Act, 1971, Section 51 of the Act, 1971, is relevant for the purpose. Sub-section (1) of Section 51 of the said Act, 1971, is not applicable; the liability was not that of Autonomous State of Meghalaya, nor was it apportioned as the share of Autonomous State of Meghalaya by virtue of Section 58 of the Act, 1969, as discussed above. Sub-section (3) of Section 51 of the said Act, 1971, has direct bearing on this question. Sub-section (3) of Section 51 reads as follows: (3) Subject to the provisions of Sub-sections (1) and (2) of this section and Section 52, all rights liabilities and obligations whether arising out of any contract or otherwise, which are, immediately before the appointed day, the rights, liabilities and obligations of the existing State of Assam and all property and assets held by the existing State of Assam immediately before the appointed day shall be apportioned between the State of Assam and the State of Meghalaya in accordance with the provisions contained in the Sixth Schedule. Paragraph 15 of the Sixth Schedule to the Act, 1971 which is also relevant reads as under: 15. Liability in respect of actionable wrong.--Where, immediatlely before the appointed day, the existing State of Assam is subject to any liability in respect of any actionable wrong, other than breach of contract, that liability shall-- (a) if the cause of action arose wholly within the territories, which as from that day, are the territories of the State of Assam or the State of Meghalaya, be the liability of the State of Assam or, as the case may be, of the State of Meghalaya; and (b) in any other case, be initially the liability of the State of Assam, but subject to such financial adjustment as may be agreed upon between the States of Assam and Meghalaya or, in default of any such agreement, as the Central Government may, by order, direct. 43. 43. Sub-section (3) of Section 51 of the Act, 1971 deals with the apportionment of rights and liabilities between the State of Assam and the State of Meghalaya in respect of all rights, liabilities and obligations, whether arising out of any contract or otherwise, which are, immediately before the appointed day, the rights, liabilities and obligations of the then existing State of Assam and which do not fall within the purview of Sub-section (1) and (2) of Section 51 of the said Act. Para 15 of the sixth Schedule above lays a principle as to how such liability in respect of any actionable wrong, other than breach of contract, is to be apportioned between the two States. Clause (a) of para 15 provides that if the cause of action in respect of any actionable wrong, other than breach of contract, arose wholly within the territories, which as from the 21st of January, 1972, are the territories of the State of Assam, the liability arising out of it shall be that of the State of Assam and if the cause of action of such actionable wrong arose wholly within the territories, as are comprised in the State of Meghalaya u/s 5(b) of the Act, 1971, on the appointed day, such liability shall be that of the State of Meghalaya. Clause (b) of para 15 covers the case of apportionment of liability between the two States in respect of such actionable wrong not falling within the Clause (a) above; for example, where the cause of action arose partly within the State of Assam and partly within the State of Meghalaya. 44. In the case before us, the liability in the two claims arose out of tortious act which is an actionable wrong. The cause of action arose wholly in the territory of the State of Assam before coming into force of the Act, 1971 and as such, it was the liability of the State of Assam. The case, therefore, falls within the purview of Sub-section (3) of Section 51 of the said Act, 1971, for apportionment of such a liability. The accident took place within the cantonment area of Shillong which became a part of the territory of the State of Meghalaya with effect from 21st January, 1972. The case, therefore, falls within the purview of Sub-section (3) of Section 51 of the said Act, 1971, for apportionment of such a liability. The accident took place within the cantonment area of Shillong which became a part of the territory of the State of Meghalaya with effect from 21st January, 1972. The cause of action of the actionable wrong arose wholly in the territory, as is comprised, on the appointed day, within the State of Meghalaya u/s 5(b) of the Act, 1971. We, therefore, hold that under Sub-section (3) of Section 51 of the Act, 1971, read with Clause (a) of para 15 of the Sixth Schedule to the Act, 1971, the liability under the present claim has devolved on the State of Meghalaya on apportionment between the two States. The awards in these two appeals shall be borne and paid by the State of Meghalaya. 45. In view of the foregoing discussions, both the appeals are dismissed with the modifications above. However, in the circumstances of the case, there will be no order as to costs. Baharul Islam, J. 46. I agree.